This is an information in the nature of a quo warranto by the Attorney-General at the relation of James T. Bradshaw, charging that the respondent usurped, intruded into and unlawfully holds the office of warehouse commissioner, and praying judgment of ouster against the respondent. Respondent waived the issue of the writ, entered his appearance in this action, and filed his return, in which he pleads the action of the Governor removing relator from office, and his appointment, confirmation and qualification. Relator filed his reply, pleading that Section 5995, Revised Statutes 1919, under which he was removed by the Governor, is violative of the Constitution in several respects and that he was not afforded a hearing as required by that section, so that his removal amounted to a denial of due process of law.
The case was submitted upon the following stipulation:
"1. It is admitted that the notice given by the Governor of Missouri to said Bradshaw, notifying him of the time and place when certain charges against him would be heard, was as follows: *Page 31
"`NOTICE. "`Honorable James T. Bradshaw,
"`Warehouse Commissioner of Missouri,
"`Jefferson City, Missouri.
"`Dear Sir:
"`Take notice that by virtue of authority conferred upon me by Section 5995, Revised Statutes of Missouri, 1919, and for the purpose of removing you from the office of Warehouse Commissioner, I, Arthur M. Hyde, Governor of Missouri, have made charges of inefficiency, neglect of duty, and misconduct in office against you as such Warehouse Commissioner, a copy of which charges are hereto attached and made a part of this notice.
"`You are hereby given notice that on the 11th day of June, 1921, at the office of the Governor, in the City of Jefferson, at the hour of ten o'clock a.m. you may appear in person or by counsel to be publicly heard to make defense, if any defense you have, against the said charges of inefficiency, neglect of duty and misconduct in office. You will govern yourself accordingly.
"`Given under my hand at the office of the Governor, in the City of Jefferson, this 28th day of May, 1921.
"`ARTHUR M. HYDE, Governor.'
"2. It is admitted that the charges preferred by the Governor against said Bradshaw are as follows:
"`CHARGES. "`To the Secretary of State,
"`Jefferson City, Missouri.
"`Sir:
"`I, Arthur M. Hyde, Governor of Missouri, by virtue of authority vested in me by Section 5995, Revised Statutes of Missouri, 1919, and for the purpose of removing from the office of Warehouse Commissioner of Missouri, Honorable James T. Bradshaw, now incumbent thereof, do hereby charge that the said James T. Bradshaw, Warehouse Commissioner of Missouri, has been guilty of inefficiency, neglect of duty, and misconduct of office, in the following respects and particulars: *Page 32
"`(1) That, notwithstanding the said Bradshaw was, by the State Auditor and the Supreme Court, denied recovery out of the State Treasury of the sum of $157.40 for traveling expenses outside of the State of Missouri, he nevertheless charged the same item and amount to the private inspection fund, the surplus of which was, and is, due the State of Missouri. (Book I, page 43, Check 124, Record of Private Inspection Fund).
"`(2) That, notwithstanding the said Bradshaw was, by the State Auditor, refused recovery out of the State Treasury of the sum of $65.44 for a trip to Minnesota, he nevertheless charged said item to the private inspection fund above mentioned. (Book 1, page 65, Check 330, Record of Private Inspection Fund).
"`(3) That, notwithstanding the Supreme Court of Missouri held that the expense of trips outside the State were not proper charges against the State, nevertheless the said Bradshaw did on October 20, 1920, charge said Private Inspection Fund and receive therefrom the sum of $103.34 for a trip to Minneapolis. (Book 1, page 173, Record of Private Inspection Fund).
"`(4) That, notwithstanding the salary of the said Bradshaw for all his services is fixed by law at $4500 per annum, nevertheless the said Bradshaw did, on March 31, 1921, charge to the said Private Inspection Fund and collect therefrom in addition to said salary the sum of three hundred dollars (Book 2, page 13, Check 436, Record of Private Inspection Fund), and on April 30, 1921, the sum of one hundred dollars (Book 2, page 17, Check 466, Record of Private Inspection Fund).
"`(5) That the said Bradshaw collected from the State of Missouri, the sum of $44.78 covering the expenses of an alleged trip to Jefferson City, St. Louis, and return, on January 11, 12, 13 and 14, 1921, which payment was included in State Treasurer's Draft No. 63141, and also collected from the Private Inspection Fund for "Exp. to Jeff. City, St. Louis and return, Jan. 10, 11, 12, 13, 1921, $44.78" (Book 2, p. 5) and also collected Jan. *Page 33 10, 1921, "Exps. to Jeff. City and St. Louis on official business Jan. 1921, $43.78." (Book 1, page 173, Check 303, Record of Private Inspection Fund).
"`(6) That the said Bradshaw collected from the State Treasury included in above mentioned State Treasurer's draft, the sum of $45.89 covering expenses of trip to Jefferson City, on Jany. 30, 31, Feb. 1, 2, 3, 4, 1921, and also collected from said Private Inspection Fund for "Exp. to Jeff. City, St. Louis, and return, Jan. 30, 31, Feb. 1, 2, 3, 1921, $45.89." (Book 2, page 5, Record of Private Inspection Fund).
"`(7) That the said Bradshaw has paid and still is paying to certain employees of his department larger salaries than are allowed by law to be paid, charging the salaries allowed by law to be paid to such employees out of the State Revenue Fund, and the surplus out of the Private Inspection Fund.
"`(8) That said Bradshaw has charged to the State expenses and costs of trips made for political and private purposes only.
"`(9) Said James T. Bradshaw, Warehouse Commissioner, has and does now continue in the employ of his department persons who are notably inefficient and are so rated by the Warehouse Committee of the Board of Trade of Kansas City, and of the U.S. Department of Agriculture, Bureau of Markets, and whose inefficiency is well known to said Bradshaw, or could well and easily be determined by the said Bradshaw by the most casual investigation.
"`(10) Said James T. Bradshaw, Warehouse Commissioner, permitted the serious waste to the State in that, through lax and wasteful administration, he permitted and allowed the accumulation of surplus grain samples within his office to be used for private purposes, continuing such practice until approximately the latter part of 1918, ceasing such practice only after the United States Food Administration had started an investigation and the case had been put in the hands of the United States Secret Service. During that period said grain *Page 34 samples were allowed to be taken and carried away from the office by private parties.
"`(11) Said James T. Bradshaw does not now exercise proper care in the collection and disposition of said surplus grain samples. The records of sales of said grain samples show that the private weighing and inspection fund, received, for the month of April, 1921, $24,60; for the month of March, 1921, $86,40; for the month of February, 1921, $75.04; for the month of January, 1921, $92.34.
"`(12) Said James T. Bradshaw, by his inefficient administration permitted the expense of his department during the year ending December 31, 1920, to increase $10,202.75, over the expenses for the year ending December 31, 1919, although the business done was less and receipts of said department for the same period show a decrease of $3,336.82.
"`I do hereby set down the 11th day of June, 1921, as a day upon which hearing of said charges shall be had at the office of the Governor at Jefferson City, State of Missouri, beginning at ten o'clock a.m.
"`Given under my hand at the office of the Governor in the City of Jefferson, this 28th day of May, 1921.
"`ARTHUR M. HYDE, Governor.'
"3. It is admitted that at all times in the pleadings mentioned, both relator, Bradshaw, and respondent, Hedrick, possessed all of the qualifications required by law to render each of them eligible to appointment to the office of Warehouse Commissioner of the State of Missouri, and each of them is still so eligible; that said Bradshaw was on the — day of April, 1919, duly appointed to said office for a term of four years and was thereafter duly confirmed, and accepted said appointment and took possession of said office and so remained until said Hedrick took possession of said office on or about June 15th, 1921; that on or about June 15, 1921, the Governor of Missouri did appoint said Hedrick to said office and said Hedrick was thereafter confirmed by the Missouri Senate and took possession of said office and has *Page 35 ever since remained in possession thereof; that since said Hedrick took possession of said office, said Bradshaw has demanded of him that he surrender the possession thereof to said Bradshaw, but that said Hedrick declined to do so.
"4. It is admitted that the hearing on said charges against said Bradshaw was had before the Governor of Missouri, beginning at ten o'clock in the forenoon of Saturday, the 11th day of June, 1921, and that the same was continued until about two o'clock on the morn of Sunday, June 12, 1921.
"That during the hearing (the witness Bradshaw being then upon the stand) the following occurred:
"`Governor Hyde: Mr. Williamson, the date of this hearing is June 11th; every witness that you brought here has had an opportunity to testify; we can't afford to shut down this end of the government a bit more than Mr. Bradshaw can his end, and this hearing will terminate when these witnesses have been heard.
"`Judge Williamson: We protest that we are denied the hearing guaranteed us by law, and now avow our desire, ability and intention, if permitted, to do so, to produce various witnesses from various parts of the State to testify to the effect that the charges here preferred against Mr. Bradshaw are not well founded in fact.
"`Governor Hyde: Just take this for the purpose of this hearing; it will be admitted that witnesses could be produced who will testify as stated.
"`Judge Williamson: Will Your Excellency permit me to make an offer of proof which shall be taken as the testimony?
"`Governor Hyde: Oh, you can offer anything in the world.
"`Judge Williamson: Well, we now avow that we can and will, if given the opportunity so to do, produce before the Governor the personal attendance and evidence of witnesses, or the depositions of witnesses at various and numerous parts throughout the State, which *Page 36 witnesses know and will testify that the management of the department under Mr. Bradshaw's administration in the places where they are familiar with the conditions, has been honest, efficient, economical, and satisfactory to them; that these witnesses will be and are men of the highest character, of all political faiths and of none — no political faith — and that they will testify from their own knowledge, observation and experience covering the entire period covered by the charges.
"`Governor Hyde: As heretofore stated, the hearing will terminate with the witnesses who appeared on the day of the hearing.'
"Further on during the examination of the witness Bradshaw, the following occurred:
"`Judge Williamson: Do I understand the Governor to be serious in the statement that he intends to continue this hearing until six o'clock.
"`Governor Hyde: We will continue it until we hear this witness through?.
"`Judge Williamson: I was going to say I would have to deprive myself of that opportunity until six o'clock, because I am not going to stay here until six o'clock.
"`Senator Irwin: You have had this witness on the stand for two hours and a half.
"`Judge Williamson: Yes, but we haven't had a chance to tell you half.'
"After which, witness Bradshaw further testified and at the conclusion thereof the following colloquy ensued:
"`Governor Hyde: Are you through?
"`Judge Williamson: No sir, we are not through. I would like to have an opportunity as soon as our books arrive, as soon as we can procure an audit of the books, to go into all these matters thoroughly and fully show Your Excellency —
"`Governor Hyde: Have you any witnesses that you subpoenaed to be here to-day and are here to-day that have not been heard? *Page 37
"`Judge Williamson: We have no power to subpoena any witnesses.
"`Governor Hyde: Have you any witnesses that you want to be heard that are here now or have been here on the day of the hearing?
"`Judge Williamson: Not at ten minutes to two o'clock on Sunday morning, Your Excellency.
"`Governor Hyde: Have you anything further to say, Mr. Bradshaw?
"`Mr. Bradshaw: I want the witnesses to be heard, Mr. Bingham is to be here Monday.
"`Governor Hyde: Have you got the witnesses here?
"`Mr. Bradshaw: We will be here Monday morning.
"`Governor Hyde: You knew this hearing was set for June 11th, did you not?
"`Mr. Bradshaw: Yes.
"`Governor Hyde: Were they here on June 11th?
"`Mr. Bradshaw: I had no idea you would get through in a day.
"`Governor Hyde: Are they in attendance on this hearing?
"`Mr. Bradshaw: They will be here.
"`Governor Hyde: Did you have them here June 11th?
"`Mr. Bradshaw: I couldn't.
"`Governor Hyde: The hearing is adjourned.
"`Judge Williamson: Will any further evidence be heard?
"`Governor Hyde: Not in this case.'
"That thereupon the Governor adjourned said hearing and thereafter prepared and filed his findings whereby he removed said Bradshaw from his office of Warehouse Commissioner.
"5. It is admitted that no witnesses were introduced to testify in support of said charges (unless the testimony of witnesses introduced by said Bradshaw *Page 38 supported said charges); that ten days' notice was given of the date and place of said hearing; that the said Bradshaw applied to the Governor to appoint a commissioner to take testimony of various witnesses in various parts of the State in his behalf, and said request was denied; that he asked further time in which to take depositions of witnesses and this request also was denied.
"6. It is admitted that said Bradshaw claimed he had arranged for other witnesses to be present on Monday morning, June 13th, 1921, to testify in his favor concerning said charges, and that these witnesses were never heard.
"7. It is further admitted that all of the evidence that was heard in this proceeding and all proceedings at said hearing were taken down in shorthand and afterwards transcribed and filed in the office of the Secretary of State, together with the Governor's findings thereon, and that the foregoing excerpts of testimony are taken from said transcript, and it is understood and agreed that either relator or respondent or both may present in an abstract of the evidence and proceedings, such additional portions of said transcript as he may desire, such abstract to be served on the other party in time to verify the same by comparing it with said transcript of the proceedings before the Governor and the same shall be considered with the same effect and as fully as the other facts stated in this stipulation, provided, however, that nothing herein contained shall be construed as an admission by relator that respondent was ever lawfully appointed to the office of Warehouse Commissioner by the Governor of Missouri, nor that said alleged appointment was ever lawfully confirmed by the Missouri Senate, nor shall anything herein contained be construed as a waiver by relator of his contention, as set forth in his pleadings herein, that said alleged appointment and confirmation and each of them were void; and conversely, nothing herein contained shall be construed as an admission by respondent that said alleged appointment and confirmation or either of them were not lawfully *Page 39 made, nor as a waiver by respondent of his contention, as set forth in his pleadings herein, that said alleged appointment and confirmation were valid.
"8. It is admitted that six witnesses were called in behalf of said Bradshaw and none were called against him. It is further stipulated that respondent's motion to strike out certain parts of the reply may be withdrawn and the case submitted on the issues of law and facts made by the petition, the answer, the reply and this stipulation, including matter to be printed from the abstract of record filed in office of Secretary of State; by either party hereto."
The relator rests his contention on the following propositions:
I. That Section 5995 is a special law, based upon an arbitrary classification, and is made applicable to a single individual, whereas a general law could have been enacted, and said section is therefore violative of Section 53 of ArticlePower to Remove IV of the Constitution.Officer: SpecialLaw.
The constitutional provision relating to special legislation is as follows:
"In all other cases where a general law can be made applicable, no local or special law shall be enacted; and whether a general law could have been made applicable in any case is hereby declared a judicial question, and as such shall be judicially determined, without regard to any legislative assertion on that subject." [Par. 32, Sec. 53, Art. IV, Constitution.]
Section 5995, Revised Statutes 1919, is as follows:
"The Governor may remove the Commissioner for inefficiency, neglect of duty, or misconduct in office, giving him a copy of the charges against him and an opportunity of being publicly heard in person or by counsel, in his own defense, upon not less than ten days' notice. If such Commissioner shall be removed, the Governor shall file in the office of the Secretary of State a complete statement of all charges made against such Commissioner, and his findings thereon, together with *Page 40 a complete record of the proceedings. The Legislature also shall have the power, by a two-thirds vote of all members elected to each house, after ten days' notice in writing of the charges and a public hearing, to remove the Commissioner from office for dereliction of duty, or corruption, or incompetency."
This is one of the sections of Article II, Chapter 49, Revised Statutes, and is entitled, "Inspection of Grain." Section 5994 provides for the appointment of a Warehouse Commissioner by the Governor by and with the advice and consent of the Senate. Section 5995 provides for the removal of the Commissioner for inefficiency, neglect of duty or misconduct in office. The remaining sections of the article pertain to the duties of the office, salary of the Commissioner and the details of the conduct of the business of the office. It is the only statute relating to the office.
The provision of the Constitution referred to was contained in the Constitution of 1865. It has been before the court for consideration in many cases. "An act which embraces all persons `who are, or who may come into like situations and circumstances, is not a special act.' [Humes v. Railroad, 82 Mo. 221.]" — State ex rel. Martin v. Wofford, 121 Mo. 62, 69.
"It is well settled that a law which includes all persons who are in or who may come into like situations and, circumstances, is not special legislation. [State ex rel. v. Wofford,121 Mo. 61; State ex rel. v. Yancy, 123 Mo. 391; Spalding v. Brady,128 Mo. 653; State ex rel. v. Higgins, 125 Mo. 364.]" — Elting v. Hickman, 172 Mo. 237, 257.
In Miners' Bank v. Clark, 252 Mo. 30, it is said: "A statute is not special or class legislation if it apply to all alike of a given class, provided the classification thus made is not arbitrary or without a reasonable basis. [State v. Julow,129 Mo. 163; White v. Railroad, 230 Mo. 287, l.c. 305-306.] `The courts, before pronouncing a statute void, demand to be satisfied beyond a reasonable *Page 41 doubt of its vice, so this court has announced, "Both upon principle and authority the acts of the Legislature are to be presumed constitutional until the contrary is clearly shown; and it is only when they manifestly in-infringe on some provision of the Constitution that they can be declared void for that reason. In case of doubt, every possible presumption not directly and clearly inconsistent with the language and subject-matter, is to be made in favor of the constitutionality of the act."'" (Citing cases.) [State ex rel. v. Kimmel, 256 Mo. 611, 642; State ex rel. v. Wilson, 232 S.W. (Mo.) 140, 145.]
The distinction between a special and a general law was clearly expressed in State ex rel. Budd v. Hancock, 66 N.J.L. 133, 48 A. 1023, as follows:
"What constitutes a special law within the meaning of the Amended Constitution has been repeatedly adjudicated. A law is special in a constitutional sense when, by force of an inherent limitation, it arbitrarily separates some persons, places or things from others upon which but for such limitation it would operate. The test of a special law is the appropriateness of its provisions to the objects that it excludes. It is not, therefore, what a law includes that makes it special, but what it excludes. If nothing be excluded, that should be contained, the law is general. Within this distinction between a special and a general law, the question in every case is whether any appropriate object is excluded to which the law, but for its limitations, would apply. If the only limitation contained in a law is a legitimate classification of its objects, it is a general law. Hence, if the object of a law have characteristics so distinct as reasonably to form, for the purpose legislated upon, a class by itself, the law is general, notwithstanding it operates upon a single object only; for a law is not general because it operates upon every person in the state, but because every person that can be brought within its predicament becomes subject to its operation. . . .
"In the present case, in view of the admitted fact that there is no other officer in the state of like character *Page 42 to that upon which the law in question operates, it is obvious that the law excludes no object to which its provisions are appropriate, unless it be maintained that the salary of no state officer can be increased unless, by the same law, the salary of every other state officer is likewise increased. . . . If on the contrary, this act is special only in the sense that its object is single, the question of its special character in a legal sense does not arise."
See also State ex rel. v. Gordon, 245 Mo. 12, 31, and State v. Whitaker, 160 Mo. 59.
Under the present Constitution, the General Assembly has passed laws relative to separate, distinct, special subjects and creating separate and distinct offices. It has created different and distinct departments and provided for the appointment and removal of officers, such as bank commissioner, insurance commissioner, inspector of oils, inspector of beverages, food and drug commissioner and numerous others. Some of these are removable for cause, some at discretion. In some instances the appointment and removal require the concurrence of the Senate. It is suggested in relator's brief that a general law applicable to all appointive state officers could easily have been passed. Such a bill would relate to more than one subject, and would be obnoxious to Section 28 of Article IV of our Constitution. But it is insisted that a general law applicable to the removal of all appointive state officers could have been passed. However, as the act is general and not special legislation, if the power of removal from office is incident or germane to the subject, it may be properly included therein, as we will endeavor to show in the next paragraph of this opinion. It has never been understood that there must be a general law relating to the appointment, conduct of office or removal from office of appointive officers, or reducing such offices to common periods of duration or salary, or to provide a uniform manner of removal and the filling of vacancies, or that every appointment by the Governor should be confirmed by the State Senate. *Page 43
Section 5995 applies to every person who may hold the office of Warehouse Commissioner. No incumbent of this office is excluded from its operation. The act complies with the letter and spirit of the section of the Constitution invoked, and is no more a special act than that creating the office of inspector of oils, bank commissioner, or any of the other offices mentioned above. A simple reading of State v. Logan, 268 Mo. 169, will suffice to show that the act under consideration in that case was a special or local act. It could apply to Jasper County, and no other county in the State.
II. That Section 5995 conflicts with Section 28 of Article IV of the Constitution in that the title does not clearly express the subject of the act, nor include within its meaning any grant of power to the Governor to prefer charges, hold aTitle of Act hearing, make findings or remove the Warehouse Commissioner. A minor contention is that in mentioning "powers and duties" the title goes into particulars, and that legislation not relating to powers and duties is thereby excluded.
Section 5995 is part of an act passed in 1913. [Laws 1913, p. 354.] The title is as follows:
"An act to repeal Article 2 of Chapter 60 of the Revised Statutes of Missouri, 1909, relating to inspection of grain and hay, and to enact in lieu thereof a new article, to be known as Article 2, relating to inspection and weighing of grain, abolishing the office of Railroad and Warehouse Commissioners, creating the office of Warehouse Commissioner and fixing his powers and duties, with an emergency clause."
The general rule is that the title should express the subject, but need not mention the details or incidents, nor furnish an index to or bill of particulars of the act. If legislation fairly relates to the subject, it can read its "title" clear. In 36 Cyc. 1017, it is said:
"The provisions of the various constitutions relating to the subject-matter and titles of acts should be construed *Page 44 liberally to uphold proper legislation, all parts of which are reasonably germane on the one hand, and to prevent trickery on the other hand. The restriction requiring the subject of an act to be expressed in its title should be reasonably construed, considering substance rather than form, to require the expression in the title of the general object but not the details or incidents, or means of effecting the object sought, and to include the subject and not the purpose of the act and the reasons which brought about the enactment of it by the legislature."
At page 1028: "The title may be comprehensive, and need not be a synopsis of the entire act, but may cover any matters having congruity and proper connection with it."
This is clearly illustrated in the following cases.
In State ex rel. v. Slover, 134 Mo. 10, the question was as to the forum or court in which should be tried an election contest to determine which of two men had been elected County Marshal of Jackson County. No reference was made to election contests in the title of the act. The court said:
"Now the act of February 1, 1871, had the single comprehensive title of `An Act establishing the office of Marshal of Jackson County, and defining his powers and duties.' At once the suggestion comes as to the method of electing or appointing the incumbent, the length of his term, the salary or perquisites, the filling of the vacancy in case of death or resignation, and nothing could be more natural than to look to the body of the act to ascertain what provision had been made to insure the orderly succession in the incumbency of the office, and to provide for settling the dispute of rival claimants thereto. Certainly such a provision as is found in section 16 would be germane to the subject and would have an obvious connection with it. Indeed, we may remark that in the then prevailing system of providing specially for contesting elections, had the Legislature not have provided the right of contest for this office, and designated *Page 45 the tribunal, it might have been considered casus omissus." [L. c. 17 and 18.]
The title to the act uses the words "and defining his powers and duties," being in that respect identical with the title to the act in question.
In State ex rel. v. Ranson, 73 Mo. 78, l.c. 86, the court said:
"In the first place, it may be well to inquire what is the general scope and intent of this constitutional inhibition? Theadjudicated cases, as well as the elementary writers, all concurthat it was to prevent the vicious practice of conjoining, in thesame bill, incongruous matters, and subjects having no legitimateconnection or relation to each other, and in no way germane tothe subject expressed in its title; that its object was toprevent surprise or fraud upon members of the Legislature, ratherthan embarrass legislation by making laws unnecessarilyrestrictive. [Cooley on Const. Lim., 174; City of St. Louis v. Tiefel, 42 Mo. 590.]" (Italics ours.)
Here we have in a nutshell the mischief to be remedied by the constitutional provision under consideration.
In St. Louis v. United Rys. Co., 263 Mo. 387, 452, we said:
"But in this case, the title of the amendatory act is sufficient. It amply indicates the subject-matter of the act amended, and the nature and purpose of the amendments; under this insignia the reader will not fail to understand the purport of the ordinance, and this is all that is required, for has this court not said: `It is only necessary that the title shall indicate the subject of the act in a general way without entering into details,' because `sound policy and legislative convenience dictate a liberal construction' in the titles of statutes. [State v. Whitaker, 106 Mo. 59, 70; St. Louis v. Weitzel, 130 Mo. l.c. 616; St. Louis v. Liessing, 190 Mo. 464, 490.]"
In Coffey v. Carthage, 200 Mo. 616, 621, we said:
"While the matter of change of venue is not mentioned in the title to the act, it certainly has a natural connection therewith, and it has always been held by the *Page 46 court that such provisions in a law are valid. Thus, in State ex rel. v. Mead, 71 Mo. 266, it was said that `a provision in an act "concerning popular elections" authorizing the Governor to fill vacancies in elective offices, is germane to the general subject and is valid.'
"So it was held in the case of Ewing v. Hoblitzelle, 85 Mo. 70, that a statute providing for the registration of voters and to govern elections and to create the office of recorder of votes, contained but one subject and in that case it was said that an act containing provisions relating to matters which are germane to the general subject is not obnoxious to the constitutional inhibition that `no bill shall contain more than one subject.' To the same effect are State v. Bennett, 102 Mo. 356; Lynch v. Murphy, 119 Mo. 163, and cases cited. It is not at all necessary to the validity of an act of the legislature that it embrace every detail of legislation embraced in it, but all the Constitution requires is that the subject embraced in the act shall be fairly and naturally germane to that recited in the title, and we think such is the case with respect to the provision of the act in question."
The title to the act under consideration in the Coffey Case reads (page 621): "An act in relation to the 25th Judicial Circuit, dividing the court into two divisions, providing two judges for the transaction of the business of said court, for the appointment of an additional judge and fixing the salary of said judges."
It goes into particulars, but is silent on the matter of change of venue.
Similar rulings were made in State ex rel. Wiles v. Williams,232 Mo. 56, 75, 76; Booth v. Scott, 276 Mo. 1; Asel v. Jefferson City, 229 S.W. 1046, 1048, and State ex inf. Barrett v. Imhoff,291 Mo. 603, decided at the present term. In the Asel Case, the rule is clearly stated by ELDER, J., page 1048:
"Furthermore, so long as the title does not cover legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection, it is not subject to objection for generality. *Page 47 [City of St. Louis v. Tiefel, 42 Mo. l.c. 592; Lynch v. Murphy,119 Mo. 163, 24 S.W. 774.]"
Booth v. Scott, supra, clearly illustrates the rule. The title to the act there under consideration reads: "An act to repeal Section 1025, R.S. 1919, and to enact a new section in lieu thereof," said section being a part of the chapter on private corporations and relating to foreign corporations. It was held that the title was broad enough to authorize a provision in the act making incorporators liable as partners for the debts of the corporation if it should appear that the corporation was organized under the laws of a foreign state by citizens and residents of Missouri for the purpose of avoiding the laws of this State.
The contention that the title to the act in question goes into particulars is without merit. The cases cited have no relevancy. This will appear from the following excerpts from the opinion of WALKER, P.J., in State v. Sloan, 258 Mo. 305, l.c. 313:
"The purpose of a title is to serve as a clear and comprehensive indicator of the purport of the act. While it may be so general in its terms as to omit reference to or the expression of matters germane to the principal features of the statute, if it sufficiently indicates the substantial purpose of the law, it will not be violative of the Constitution; but where a title descends to particulars and specifies a certain class included within the provisions of the act, to the exclusion of others, it does not sufficiently indicate the purport of the law, and is to that extent violative of the constitutional provision.
"We find, therefore, in the case at bar that the body of the act contains provisions applying to residents as well as non-residents of the State, while its title, as definitely as words can convey their meaning, limits its application to non-residents; under this state of facts, much as the court may be disinclined to declare the act invalid, it cannot in the face of the plain provisions of the Constitution, (Sec. 28, art. 4) do otherwise in so far as it is attempted to apply the act to residents of this State. *Page 48 The following authorities are apposite: In State v. Rawlings, 232 Mo. l.c. 557, it is held that where the title of an act descends into details and attempts to point out a particular class of persons to which the law is intended to apply, it will not support a law leveled against a wholly different class of persons not mentioned in such title; and in State v. Great Western Coffee Tea Co., 171 Mo. 634, it was held that a title leveled only against manufacturers of certain baking powders would not support a statute prohibiting persons from selling such baking powders; and in St. Louis v. Wortman, 213 Mo. 131, the title purported to `create the office of dairy commissioner and define his term, duties and powers' and it was held this would not give validity to a section which sought to prohibit individuals from selling impure dairy products; so in State v. Fulks, 207 Mo. 26, it was held that the title which referred only to the sale of intoxicants was not broad enough to authorize a provision in the body of the act prohibiting the giving away of intoxicants."
The act in question is clearly in harmony with Section 28 of Article IV of the Constitution. It contains no more than one subject, which is clearly expressed in the title. The provision authorizing the Governor to remove the Commissioner for inefficiency, neglect of duty or misconduct in office is germane to, and has an obvious connection with, the subject expressed in the title.
III. That Section 5995 is void because it is in violation of Article III of the Constitution, in that it attempts to invest the executive department with judicial authority. TheJudicial act complained of was an administrative, not aPower. judicial, act.
In State ex rel. Murphy v. Burney, 269 Mo. 602, we held that the Board of Police Commissioners of Kansas City, in hearing complaints lodged against policemen for misconduct, does not sit and act in a judicial capacity, but in an administrative capacity.
In State ex rel. v. Wells, 210 Mo. 601, we held that the Mayor of St. Louis, in hearing and determining *Page 49 charges against the Commissioner of Public Buildings, and in removing him from office for incompetency and neglect of official duty, does not act as a judicial officer, and he is not prevented by the Constitution from removing the officer, though in the hearing he may pursue quasi-judicial methods. At page 610, Fox, J., said:
"Upon these provisions of the Constitution learned counsel for appellant predicates his contention and seeks to draw the conclusion that, inasmuch as the mayor is an executive officer, he cannot exercise the powers of the judge. It is sufficient to say upon that insistence that in contemplation of the provisions of the Constitution, wherein it vests the judicial power in the courts of the State, the mayor is not a judicial officer, nor under the terms of the Constitution is he to be denominated a judge in any way connected with the judicial department of the State. Manifestly one to be a judicial officer must in some way be connected with the judicial department. Judges of judicial tribunals contemplated by the Constitution must be the presiding officers of some tribunal whose jurisdiction or power is defined or prescribed by the Constitution or laws made thereunder."
Again at page 614:
"It is earnestly insisted that the mayor was disqualified from hearing complaints against the relator which had been preferred by the secretary to the mayor. With all due respect to the learned and esteemed counsel for appellant, we are unable to give our assent to this insistence. As already stated, the charter provisions imposed the duty upon the mayor to see that the laws of the city and ordinances of the city are respected and enforced. In other words, it is made his duty to see that the officers appointed by him are not derelict in the discharge of their duties, and the mere fact that his secretary prefers the charges against one of the officers in one of the departments, or even if the mayor should make out the charges himself, it by no means follows that he is prejudiced or biased or has any other interest in the proceedings than to ascertain whether or not the *Page 50 charges are true. The mayor has certain duties imposed upon him and he is entitled to the presumption that he will conscientiously and in good faith discharge those duties. It certainly would be a very violent presumption that the mayor of a great city in the investigation of charges against officials acted from spite or any other improper motive. The only presumption that can be indulged, in the absence of any showing to the contrary, is that he is acting in obedience to the commands of the organic law of the city of which he is the chief executive."
Relator's contention that the statute in question makes the Governor informer, prosecuting witness, prosecuting attorney, judge, jury and executioner, and that from his findings no appeal is allowed; that such legislation is obnoxious to Article III of our Constitution, which divides the powers of the government into three distinct classes, the legislative, the executive and the judicial, each of which shall be confided to a separate magistracy, is disposed of by the excerpts from the opinion of Judge Fox. It is the general rule that, although a statute authorizing the removal of an officer by the Governor or other executive officer, contemplates an investigation by such officer of the grounds of complaint and the formation of a judgment by him, such action is of an executive and not of a judicial nature. [12 C.J. 899.]
IV. That the so-called hearing before the Governor was so conducted by him as to constitute a denial to relator of the right secured to him by Section 30 of Article II ofDue Process. the Constitution of Missouri, and the attempted removal of relator from the office of Warehouse Commissioner was void for that reason.
Section 30 of Article II: "That no person shall be deprived of life, liberty or property without due process of law."
"A public office is a public trust;" it is a public agency solely for the good of the public, which, unless *Page 51 otherwise provided in the Constitution, may be abolished or regulated by statute. Nevertheless, one who has been elected or appointed to a public office has a right to exercise its functions and enjoy its emoluments during the term for which he was appointed or elected, unless sooner removed in accordance with the provisions of the law. Whoever undertakes to remove such an one must be able to put his finger on the law authorizing such action. [State ex rel. Henson v. Sheppard, 192 Mo. 497, 509; State ex rel. Mosconi v. Maroney, 191 Mo. 531, 545.]
Section 5995 provides that the Governor may remove the Commissioner for inefficiency, neglect of duty, or misconduct in office, giving him a copy of the charges and an opportunity of being publicly heard in person or by counsel in his own defense, upon not less than ten days' notice. The relator accepted his appointment subject to removal as provided in the section. It was as much a condition of his appointment as if the statute had been written into his commission. The respondent contends that the relator was given a public hearing in person and by counsel, in his own defense. The facts stipulated show that the Governor read the charges and stated that the proof of some of the charges was in a certain record of what was known as the Private Inspection Fund, and that other proofs were in certain other specified documents which the Governor said he had examined. The relator testified and was followed by other witnesses. The hearing continued from ten a.m. of June 11th until about two a.m. of the following day, when the Governor refused to adjourn the hearing for the taking of depositions and the production of other witnesses, announced that the charges were sustained, and thereafter prepared and filed his findings, whereby he removed relator from office.
The statute does not provide the procedure to be followed at the hearing, nor make the procedure in the trial of civil or criminal cases in our courts applicable to such hearings. The contention is that the Governor should have first introduced the evidence on which he *Page 52 relied for proof of the charges preferred, so that the relator would have been informed thereof before being put on his defense. Without doubt that is the orderly procedure in the trial of a civil case, but the statute has not so provided in hearings of this character. The act says that the Commissioner shall have an opportunity to be heard.
If relator's contention be conceded; if he had the right to have the Governor make out the case, in limine, and had stood mute, and we had the power to review the Governor's action, the case would present a live question. But relator cannot play fast and loose. When he offered his testimony and that of his witnesses, he clearly abandoned his contention, waived his right in the premises and cannot now be heard to complain of the alleged irregularity.
Take the first charge preferred by the Governor; that relator was denied by the Supreme Court an allowance out of the State Treasury of $157.40 for traveling expenses outside of the State, yet he charged this item to the private inspection fund, the surplus of which is due to the State.
In State ex rel. Bradshaw v. Hackman, State Auditor,276 Mo. 600, decided by Court in Banc, January 25, 1919, relator sought a writ of mandamus against the Auditor to compel the allowance and payment of this identical item for traveling expenses to Washington, D.C., in March, 1918, in connection with his official duties. In the opinion by FARIS, J., in which all concurred, it was held that travel outside of the State at its expense is not authorized by the statute. It is specifically charged that, notwithstanding this ruling, the relator charged this amount to the private inspection fund and reference is made to the book and page of the record and the number of the check. Various other items of like expenses for traveling outside the State are charged to have been paid by the relator out of this fund. It appears from the stipulation that relator was on the witness stand in his own defense for two hours and a half, and introduced other witnesses; that he had a hearing from ten a.m. *Page 53 of June 11th until nearly two a.m. of the following day; that he concluded his personal testimony and demanded and was refused a postponement of the case to permit him to take depositions and produce other witnesses from various parts of the State to testify to the effect that the charges preferred are not well founded. By Governor Hyde: "Just take this for the purpose of this hearing: It will be admitted that witnesses could be produced who will testify as stated." Relator then asked an opportunity to produce other witnesses or the depositions of witnesses at various and numerous parts of the State who knew and will testify that relator's management of the department in the places where they are familiar with the conditions has been honest, efficient, economical and satisfactory to them.
The relator knew whether or not he paid himself out of the private inspection fund for the traveling expenses specified in the charges. He testified at length. It must be assumed that his testimony was relevant to the charges. What was his testimony? Did he admit or deny the charges? The abstract of the record prepared by the relator does not set out his testimony as to any of the charges nor that of any other witness who testified at the hearing. We are therefore unable to review the case or to find that the refusal to postpone the hearing was an abuse of the Governor's discretion. In fact we are not asked to review the evidence, but to say, in the absence of the evidence adduced, that in refusing the postponement he was denied a hearing, and that his removal from office was without due process of law.
Relator offered, if given further time, to prove by witnesses that his management of the department had been honest, efficient, economical and satisfactory to them (the witnesses). These offers were of more opinions and conclusions, having no relevancy to the questions at issue. There was no definite offer of proofs. Moreover, the Governor said that it would be admitted that witnesses could be produced who would testify as *Page 54 stated by the relator. In the absence of the evidence so heard by the Governor, which the relator has not seen fit to produce, must we not assume that a case was made warranting the relator's removal? Assuming, as I think we must, that there was evidence to sustain the charges, what would it have availed the relator if the hearing had been postponed? However, under the agreement that the evidence relator desired to introduce would be considered, he had the benefit of his tender, which, as we have seen, were mere opinions and conclusions. But before the Chief Executive can be convicted of abuse of discretion in the premises, we must have the evidence which the relator has not seen fit to incorporate in his abstract. However, as heretofore stated, we are not asked to review the evidence, but to hold that removal of relator from office was without due process of law. On this record we cannot so hold.
V. The fundamental question, however, is: Has thisJudicial court jurisdiction to review or set aside anReview of administrative or executive act of the Governor in aGovernor's matter in which he has exclusive jurisdiction?Acts.
Article III of our Constitution reads:
"The powers of government shall be divided into three distinct departments — the legislative, executive and judicial — each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this Constitution expressly directed or permitted."
Section 5995, Revised Statutes 1919, empowers the Governor or the Legislature to remove the Commissioner after notice and a hearing. Has the Constitution set this court above the Governor in any matter in which it has charged him with an official duty? The legislative, executive and judicial powers of the State are each confided to a separate magistracy. Each department of the State *Page 55 is forbidden to exercise any power properly belonging to either of the other departments, except in the instances in the Constitution expressly directed or permitted. The Supreme Court has a general superintending control over all inferior courts, but is given no control or supervision of the other departments of the State. The Governor is as independent of the courts as the courts are independent of the Chief Executive. Any other theory leads to chaos. The Chief Executive and the Judiciary are answerable to the people and "shall be liable to impeachment for high crimes or misdemeanors, and for misconduct, habits of drunkenness or oppression in office." [Art. VII, sec. 2, Constitution.] If this court can review and set aside an executive or administrative act of the Governor, then it is clear that the executive department is not a distinct and independent department of the government.
In 12 Corpus Juris, p. 897, sec. 399, it is said:
"Executive officers, intrusted by the Constitution or by statute with the power of appointment to office, are not subject to judicial control in the exercise of their discretion in selecting appointees. In like manner, the courts may not interfere with the removal of an officer where full power of removal has been vested by law in the Governor or other executive officer."
In Hartranft's Appeal, 85 Pa. 433, 445, 27 Am. Rep. 672, in considering the prerogatives of the governor, it is said:
"In other words, if, from such analogy, we once begin to shift the supreme executive power from him upon whom the Constitution has conferred it, to the judiciary, we may as well do the work thoroughly and constitute the courts the absolute guardians and directors of all governmental functions whatever. If, however, this cannot be done, we had better not take the first step in that direction. We had better at the outstart recognize the fact, that the executive department is a co-ordinate branch of the government, with power to judge what should or should not be done, within its own department, and what of its own doings and communications *Page 56 should or should not be kept secret, and that with it, in the exercise of these constitutional powers, the courts have no more right to interfere, than has the executive, under like conditions, to interfere with the courts."
In State ex rel. Robb v. Stone, 120 Mo. 428, 432, SHERWOOD, J., said:
"In this instance we, constituting a portion of the judicial department of the government, are called upon to exercise, or what amounts to the same thing, to control the exercise of powers belonging exclusively to the executive department of that government. To such action on our part the organic law interposes an insuperable barrier. In addition to the provisions of the organic law quoted, that instrument also declares that `the supreme executive power shall be vested in a Chief Magistrate, who shall be styled "the Governor of the State of Missouri."' [Const., art. 5, sec. 4.] Section 6 of the same article requires that `the Governor shall take care that the laws are . . . faithfully executed.' Of the same article, Section 1 provides that the Governor `shall perform such duties as may be prescribed by law.' And Section 6 of Article 14, as a prerequisite to his entering on the duties of his office, prescribes that he `take and subscribe an oath to support the Constitution of the United States and of this State, and to demean himself faithfully in office.'
"Under these plain and comprehensive provisions, it must be apparent that any duty `prescribed by law' for the Governor to perform, is as much a part and parcel of his executive duties as though made so by the most solemn language of the Constitution itself.
"Conceding the validity of any given law, the fact that the duties which it prescribes are merely ministerial can not take them out of the domain of executive duties, nor make them any the less those which `properly belong' to the executive department of the government. And should we by our process be able to compel the performance by the Governor of such duties, we would in effect and to all intents and purposes be performingthose *Page 57 duties ourselves; for there can be no substantial distinction drawn between our assumption of duties pertaining to another department of the government and our intervention resulting in the compulsory performance of such duties; qui facit per alium, etc."
Again, on page 437:
"If, however, we have no jurisdiction over the Chief Magistrate, his consent will not confer it on us. We will not `assume a jurisdiction if we have it not;' we will not sit as amoot court and pass upon questions and enter judgment thereon which we are powerless to enforce. `For all jurisdiction implies superiority of power; authority to try would be vain and idle without authority to redress; and the sentence of a court would be contemptible, unless that court had power to command the execution of it.' [1 Cooley's Blackstone, 242.]
"As we do not possess any jurisdiction over the Governor, we shall decline any further discussion of this cause, hold the demurrer well taken and deny the issuance of the peremptory writ. All concur."
In State ex inf. v. Crandall, 269 Mo. 44, 57, this court said:
"Here, as has been shown, the power to remove was inserted in the statute and rests in the discretion of the Governor upon prescribed grounds, the existence of which he is allowed to determine to his own satisfaction. The return shows that the reasons given for his action were in strict conformity to the statutory power. He was thus possessed of jurisdiction to act, and his exercise of that jurisdiction was the discharge of anexecutive duty imposed on him as the Governor of the State, which is not reviewable by the courts. [State ex rel. v. Stone, 120 Mo. l.c. 433-4.]"
In State ex rel. Major v. Shields, 272 Mo. 342, we prohibited the circuit court judge from hearing and determining a suit for the purpose of recovering damages against a former governor of this State on account of his refusal to issue a commission to one elected to the office of clerk of the circuit court of the city of St. Louis. *Page 58 So far as it appears, the refusal to issue the commission was arbitrary and indefensible. WALKER, J., at page 346, said:
"It will suffice to say that the germinal idea of a government of three coordinate branches is first found recorded in Aristotle's Politics where it is said that `in every polity there are three departments: first, the assembly; second, the officers, including their powers and appointment; and third, the judging or judicial department.' The wisdom of this classification and its appropriate application in the framing of the laws of a free government has been illustrated by its incorporation into our national organic law and subsequently into the constitutions of the several states. The central idea in the creation of a government of this form is that the powers created shall be coordinate in their relations toward each other; and while supreme within their respective orbits they shall so move as not to invade the plane of activity of the others. Thus regulated, friction in the conduct of public affairs is avoided and that harmony promoted which is most conducive to the stability of government and, as a consequence, to the welfare of the people."
After approving the ruling in the Stone Case, supra, Judge WALKER continued at page 347:
"What is meant by ministerial duty, as applied to judicial action, is usually not difficult of determination; but it is otherwise when it is attempted to thus classify executive duties. They are usually clearly defined and the power of their performance confided exclusively to the Governor. In their exercise a degree of discretion is necessarily required. They demand, therefore, no interpretation, and are not subject to judicial control. If control is attempted to be exercised, under such a state of facts, it cannot prove otherwise than an invasion of power, and hence contrary to the spirit and purpose of the law separating the government into three branches and defining the powers of each."
And it is generally held that the exercise of the power of removal by the Governor, being an executive *Page 59 act, is due process of law and cannot be reviewed by the courts. [State ex rel. v. Hawkins, 44 Ohio St. 98, 113, 5 N.E. 228; State ex rel. v. Hay, 45 Neb. 321, 329; Wilson v. North Carolina,169 U.S. 586, 593; State ex rel. v. Ansel, 76 S.C. 395, 57 S. E, 185; Keenan v. Perry, 24 Tex. 253; Cameron v. Parker, 2 Okla. 277, 38 P. 14.]
The Governor had jurisdiction. That being conceded, it follows that this court has no power to review his action.
The writ of ouster is denied. David E. Blair and Elder,JJ., concur; James T. Blair, C.J., concurs in separate opinion, in which Higbee, David E. Blair and Elder, JJ., concur; Woodson, J., dissents in separate opinion in whichWalker, J., concurs; Graves, J., dissents in separate opinion, in which Walker, J., concurs.