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
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
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.
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’.
(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
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
(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
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 glor
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 (re
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 ac
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
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
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
(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
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)
(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
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.
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
“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.