DISSENTING OPINION BY
JUDGE WAGNER.The Legislature passed an act, which was approved April 1, 1872, establishing Probate Courts in eight counties, the county of Boone being one of the number. The act was to take effect and go into operation .on the first day of June'next after its passage, and at the ensuing November election, judges for the respective courts were to be elected. No provision was made for filling the ofiSce of judge prior to the time designated for the election. Under these circumstances the governor deemed that there was a vacancy, and proceeded to fill the same by appointment. A judge was duly appointed and qualified in the county of Boone, who demanded of the County Court the books, papers, etc., belonging to the office of probate; but the County Court refused to deliver the same, and continued to exercise probate jurisdiction, denying that the probate judge appointed by the governor was a legal officer; and this proceeding was instituted to test their right to hold and retain the before-mentioned jurisdiction.
Two questions are presented by the record. The first is, whether the establishment of the court was constitutional; and the second *327is, if constitutional, had the governor power to appoint? On the part of the County Court, it is contended that the law is invalid because it violates section 27, article rv, of the State constitution. That section, after specifically prohibiting the passage of certain acts, declares that the general assembly shall pass no special law for any case for which provision can be made by a general law; but shall pass general laws providing, so far as it may deem necessary, for the cases enumerated in the section, and for all other cases where a general law can be made applicable.
While this provision has incidentally been before this court on former occasions, it has never been presented in a shape requiring the same consideration that is here demanded. In arriving at a correct conclusion and making a construction, courts must look to the history of the times, and examine the state of things existing when the constitution was framed and adopted; to ascertain the old law, the mischief and the remedy.
When there was no restraint, special legislation was one of the great evils of the day. Aside from its vicious influence on the legislative body, it produced inextricable confusion in the business affairs of the community. Laws were diverse and contradictory in adjoining counties, and a person going from one county to another, before he could transact his business, had to familiarize himself with some special or local act. In nothing wag this practice more strikingly exhibited than in the organization of local courts with special jurisdictions. In attending to a par-: ticular class of litigation in adjoining counties, resort would sometimes have to be had to a different character of court in each county. Inferior courts were established and multiplied in remote and sparsely-settled counties, where they were unnecessary and useless. It was to strike down this great mischief,.and, produce uniformity, that the provision was inserted in the constitution. By common consent it was regarded as one of the wisest,, features incorporated in that instrument. No one will dissent., from the conclusion that the greatest harmony that can be attained, in the judicial system is highly desirable. The injunction is that,, no special law shall be passed where a general law can be made-applicable.
*328In the case of The State v. Ebert, 40 Mo. 186, we upheld the act creating the St. Louis Court of Criminal Correction and providing for the trials of misdemeanors by information, on the ground that it was necessary in a large city like St. Louis. The amount o£ crime and petty misdemeanors existing there made a demand for it. They required prompt and summary punishment, and the other courts were inadequate to furnish the proper remedy. But such a law would be unnecessary in other portions of the State, and would be inapplicable.
The question was again raised in The State ex rel. Dome v. Wilcox, 45 Mo. 458, where it was contended that the statute authorizing cities, towns and villages to organize for school purposes, with special privileges, was invalid because it was not general and applicable to all. But we decided that the law was as general as was consistent with its scope and design, and no law more general could be framed to effectuate the object in view. It was, however, distinctly announced that the special statutes referred to in the constitution were such as related to individuals or particular localities; and that, had the act applied to certain specified towns or corporations, it would have been in conflict with the organic law.
In Indiana, under a similar constitutional provision, the Legislature enacted a law authorizing the re-location of a county seat of justice, and, among other things, appointed commissioners to re-locate the same. The Supreme Court held the act clearly unconstitutional. The court, in their reasoning, say that it was very evident that to prohibit special legislation was a prominent object of the convention that framed the constitution, and that the members of that body intended to limit the action of the Legislature, relative to the enactment of local or special laws, in strict conformity to the manner therein prescribed. They then make the inquiry, can such a case as the one before them be made the subject of a’general law? To which they respond: “The solution of that question is not difficult. It is not within the sphere of judicial action to point out the features of any law; that, indeed, would be treading upon -legislative grounds. But the record presents a case — the re-location of a seat of justice. *329To apply the law to the case before us is a proper exercise o£ a judicial power; and that being done, we do know that to such a case a general law can be aptly applied. Let any one at all acquainted with the forms of legislation attempt to draw up a general law on the subject, and he will soon find that the thing can certainly be done. The mere suggestion that probable inconvenience might arise in the execution of such a law, can have no weight against the manifest intent of the constitution.” (Thomas v. Board of Commissioners, 5 Ind. 4.) In subsequent cases the court went even further in giving this clause in the constitution a strict construction.
Decisions from other States, where the same constitutional prohibition exists, might be cited, showing a uniform exposition in reference to the provision. The words in the constitution must be taken in their natural and ordinary meaning. Marshall, C. J., in relation to the constitution of the United States, says: “The framers of the constitution and the people who adopted it must be understood to have employed words in their natural sense, and to have intended what they said.” (Gibbons v. Ogden, 9 Wheat. 188.)
Bronson, J., in The People v. Purdy, 2 Hill, 31, which was subsequently approved in the Court of Errors, and cited with marked approbation by the Court of Appeals in Newell v. The People, 3 Seld. 9, declares that “written constitutions will soon become of little value if their injunctions may be lightly over-' looked, and the experiment of settling a boundary to power will prove a failure.”
Again, in the same case in the Court of Errors, in adopting Judge Bronson’s opinion, it is said: “If the courts venture to substitute for the clear language of the instrument their own notions of what it should have been, or was intended to be, there will be an end of written constitutions.” (Purdy v. The People, 4 Hill, 384.)
In construing the language of the constitution, courts have nothing to do with the argument from inconvenience. Their sole duty is to declare, ila lex scripta est — thus saith the constitution. (21 Wend. 584.)
*330As the Legislature is prohibited from passing any special law in any case where provision can be made by a general law, the question is whether a general law could be made applicable. It seems to me that to state this question is to answer it in the affirmative.
The main principles of law governing probate matters are the same throughout the State. There is no reason why a uniform system of tribunals should not be established for the administration of that law. That there are different amounts of business to do in different counties is true, and the same thing may be said of the Circuit Court, but that furnishes no argument against a general law requiring uniformity. By reference to our legislative enactments it will be seen that these special courts have been instituted in some of the smallest counties in the State, where there was the least necessity for them. In the very act which we are now passing upon, one of the counties in which a special court is established is Maries, which is one of the least populous counties in the State. To say that a general law which is sufficient for most of the counties in the State cannot be made applicable to these counties, appears to me most singular. We know, as an historical fact, that for many years the State got along with a general system, and these special courts were almost unknown, and no evil was experienced in consequence thereof. If the system which previously obtained is defective it is susceptible of amendment, but the law must be general and uniform. Any one at all acquainted with drafting of bills or with legislative proceedings can readily see how easy it would be to frame a general law on this subject applicable to the whole State.
To sustain this law would, in my opinion, be to practically nullify the constitution and blot out one of its most important provisions. That it is the duty and province of the courts in this instance, as well as all others, to decide whether the law is in conformity with the constitution, I entertain no doubt. The case of The State v. Hitchcock, 1 Kan. 178, is the only authority I have been able to find which holds that the enactment of such laws is within the legislative discretion and cannot be controlled by the courts. The contrary view is held in all the States where they have similar *331provisions. (Ex parte Pritz, 9 Iowa, 33; Davis v. Woolnough, id. 106; Hetherington v. Bissell et al., 10 Iowa, 147; Baker et al. v. Steamer Milwaukee, 14 Iowa, 217; McGregor v. Baylies, 19 Iowa, 46; Atkinson v. M. & C. R.R., 15 Ohio St. 35.) It seems to me that if the courts concede that the whole matter rests with the Legislature, the result will be a virtual abolition of this clause in the constitution. The prohibition against special legislation will be practically a dead letter. As it is the practice in the Legislature for the members to yield and grant any local measure asked by any representative in that body, it is only necessary to demand a particular enactment for a special purpose, and if there is no constitutional restraint, it is passed as a matter of course. The legislative discretion in such cases extends only to the representations of the member who is interested in the passage of the bill.
Nor do I think that any power is derived in support of this measure from that provision in the constitution which declares that the judicial power shall be vested in the Supreme Court, in Circuit Courts, and in such other inferior tribunals as the general assembly may from time to time establish. The effect of this provision is simply to invest the Legislature with power to establish inferior courts, but their establishment must be in conformity with the constitutional requirement; they must be authorized by a general law, and be uniform throughout the State.
In my opinion, therefore, the act is clearly unconstitutional. Having arrived at this conclusion, I forbear discussing the second point raised by the record.