Summary
In State ex rel. Kowats v. Arnold, 356 Mo. 661, 673, 204 S.W.2d 254, 260, it was said: "The exercise of the power [to hold insanity inquisitions and issue commitments thereunder] may deprive the subject of precious constitutional rights, liberty and enjoyment of property, which cannot be done without due process of law.
Summary of this case from State ex Rel. Fuller v. MullinaxOpinion
No. 40226.
June 9, 1947. Rehearing Denied in Per Curiam Opinion filed, July 5, 1947.
1. INSANE PERSONS: Constitutional Law: Courts: Jurisdiction of Probate Courts Over Indigent Insane. The recently enacted statutes which authorize the probate court to commit an indigent insane person at public expense without the appointment of a guardian is not in conflict with Art II, 1945 Constitution, providing for the distribution of legislative, executive and judicial powers, or with Sections 16 and 17, Art. V, 1945 Constitution, defining the jurisdiction of probate courts. The constitution must be construed as a whole, and the limitation of the powers of the county courts, which formerly exercised such jurisdiction, indicates an intent to confer such jurisdiction on the probate courts.
2. INSANE PERSONS: Constitutional Law: Commitment of Indigent Insane: Notice to City Not Provided:. Due Process Not Violated. Due process is not violated by statutory procedure permitting the probate court to commit indigent insane persons to a state hospital or city sanitarium at the expense of the City of St. Louis without notice to the city.
3. MANDAMUS: Courts: Insane Persons: Probate Court Required to Assume Jurisdiction. The probate court should be compelled by mandamus to assume jurisdiction of the insanity inquisition.
ALTERNATIVE WRIT MADE PEREMPTORY.
George L. Stemmler, City Counselor, James V. Frank, First Associate City Counselor, and Albert Miller, Associate City Counselor, for relator.
(1) In Missouri, probate courts are created by the Constitution. Secs. 1, 16-17, Art. V, Constitution of Missouri, 1945. (2) Sections 16 and 17, Article V of the Constitution of Missouri, defining the powers of the probate court, do not operate as a limitation upon the legislative authority to confer upon said court such additional powers as are not therein specifically withheld. Chickasha Cotton Oil Co. v. Grady County, 177 Okla. 240; Ludlow v. Johnson, 3 Ohio 553; Geiger v. Geiger, 117 Ohio St. 451; First State Bank of Steger v. Chicago Title Trust Co., 302 Ill. 77, 134 N.E. 46. (3) It is by legislative enactment alone that courts, with their constituent elements of time, place, and officers, are brought into actual and real existence, as contradistinguished from their existence solely under constitutional provisions. Board of Commissioners of White County v. Gwin, 136 Ind. 562, 36 N.E. 237, 22 L.R.A. 402; Ludlow v. Johnson, 3 Ohio 553, 17 Am. Dec. 609. (4) A change of the substantive law by the Legislature, which increases or decreases the subject matter on which the jurisdiction of the court operates, is not an unconstitutional interference with such jurisdiction. 21 C.J.S., p. 184, sec. 122; American Fixture Co. v. Chauffeurs, Teamsters and Helpers General Local No. 200 of Milwaukee, 222 Wis. 338, 268 N.W. 250, 106 A.L.R. 335; Fenske Bros. v. Upholsterers' International Union, 358 Ill. 239, 193 N.E. 112, 97 A.L.R. 1318. (5) The Legislature possesses every power not delegated to some other department or to the Federal government, or not denied to it by the Constitution of the state or the United States. Fenske Bros. v. Upholsterers' International Union, supra, l.c. 1327. (6) To the extent that the Constitution allows or does not prohibit, the Legislature may legislate with respect to constitutional courts; and thus, depending on the particular constitutional provisions involved, may increase, diminish, or change their jurisdiction, confer on them any additional jurisdiction that it deems advisable, may extend their jurisdiction in harmony with their character and general jurisdiction, without infringing on the inherent or constitutional powers of any other court, or may abridge their jurisdiction without infringing on their inherent powers. 21 C.J.S., pp. 184-185, sec. 122; Chickasha Cotton Oil Co. v. Grady County, 177 Okla. 240, 58 P.2d 590. (7) The constitutional validity of a law is to be tested, not by what has been done under it, but by what may, by its authority, be done. Wilmington Trust Co. v. Baldwin, 195 A. 287. (8) The constitutionality of the statute should be sustained, unless the contrary is clearly established. Wilmington Trust Co. v. Baldwin, supra, l.c. 295. (9) A statute will not be declared void unless it is impossible by any reasonable construction to interpret its provisions in harmony with the Constitution. Attorney General v. Pelletier, 240 Mass. 264. (10) Every rational presumption should be made in favor of the validity of every statute; and, the court will not refuse to enforce it unless its conflict with the Constitution is established beyond a reasonable doubt. Attorney General v. Pelletier, supra, l.c. 298-299. (11) The act of the General Assembly will be declared void only when it violates the Constitution clearly, palpably, plainly and in such manner as to leave no doubt. Hines v. Hook, 89 S.W.2d 52, 338 Mo. 114; Penn. Anthracite Co. v. Anthracite Miners of Pennsylvania, 318 P. 401, 178 A. 291. (12) A statute enacted for the protection of public health can be set aside by the courts only when it plainly has no real or substantial relationship to the subject or is a palpable invasion of rights secured by the fundamental law. Commonwealth v. Dietz, 285 Pa. 511, 132 A. 572; Commonwealth v. Artz, 285 Pa. 521, 132 A. 575. (13) The welfare of the indigent insane should be considered. La Rocca v. La Rocca, 259 N.Y.S. 569. (14) Judicial power is that which adjudicates upon and protects the rights and interests of individual citizens, and to that end construes and applies the law. People ex rel. v. White, 334 Ill. 465, 166 N.E. 100, 64 A.L.R. 1006. (15) An extension of the jurisdiction of a court, such extension being in harmony with its character, and not being a usurpation of the inherent powers of any other court, is not within the constitutional prevention. State v. Knight, 96 N.J.L. 461, 115 A. 569, 19 A.L.R. 733. (16) The rule is firmly established that in special statutory proceedings the Legislature may confer jurisdiction to determine the questions arising therein on any court that it may choose, to the exclusion of others, and if such acts furnish adequate protection to the rights of persons concerned they will be sustained by the court. White v. City of Ottawa, 318 Ill. 463; People v. McGoorty, 270 Ill. 610. (17) A legislative enactment should not be set aside unless its unconstitutionality indisputably appears, and if there be a permissible doubt as to the existence of the constitutional limitation invoked against the validity of the act, the courts will not declare the act to be contrary to the Constitution. State Board of Milk Control v. Newark Milk Co., 118 N.J. Eq. 504, 179 A. 116. (18) The court cannot substitute its conception of sound public policy for that entertained by the Legislature, if there be no disregard of a constitutional mandate. State Board of Milk Control v. Newark Milk Co., supra. (19) Probate courts possess such powers as have been expressly granted to them by the Constitution and the statutes, together with such implied powers as are necessary to effectuate those expressly granted. Secs. 1, 16, 17, Art. V, Constitution of Missouri; Sec. 493, Mo. R.S. Ann., Vol. (1), 1946 Cum. An. Pk. Pts.; Sec. 2437, R.S. Ann., Vol. (8), 1946 Com. An. Pk. Pts.; Sec. 2442, Mo. R.S. Ann., Vol. (8), 1946 Cum. An. Pk. Pts.; Secs. 9321-9347, Mo. R.S. Ann., Vol. (19), 1946 Cum. An. Pk. Pts.; State ex rel. v. Bird, 162 S.W. 119, 253 Mo. 569; State ex rel. v. Weill, 182 S.W.2d 521, 353 Mo. 337; State ex rel. v. Holtcamp, 14 S.W.2d 646, 322 Mo. 258; Parsons v. Harvey, 221 S.W. 21, 281 Mo. 413; Johnston v. Grice, 199 S.W. 409, 272 Mo. 423; State ex rel. v. Shackelford, 263 Mo. 52. (20) The Legislature may vest in the probate courts additional powers not named in the Constitution; provided, however, that such powers fall within the general classes of matters named in the Constitution and apply alike to all probate courts. State ex rel. v. Tincher, 166 S.W. 1028, 258 Mo. 1; Painter v. Painter, 228 S.W. 538, 206 Mo. App. 312. (21) By the provisions of Senate Bill No. 284 (Sections 9321 to 9347, Mo. R.S. Ann., Vol. 19, 1946 Cum. An. Pk. Pts.), the power and duty to conduct a hearing and determine whether an indigent insane person is a person of unsound mind and to commit such person to a state hospital at the expense of a county or the City of St. Louis have been taken from the county court and added to the probate court. This the Legislature had the authority to do under Sections 16 and 17 of Article V, Constitution of Missouri 1945. Downey v. Schrader, 182 S.W.2d 320, 353 Mo. 40; Ussery v. Haynes, 127 S.W.2d 410, 344 Mo. 530; Van Loo v. Osage County, 141 S.W.2d 805, 346 Mo. 358; State ex rel. v. Montgomery, 186 S.W.2d 553. (22) In the absence of any statute regulating the procedure, the rule always followed is that the chancery or probate court of the residence of a supposed lunatic is the proper forum to conduct an inquiry as to his mental state. 44 C.J.S., pp. 57-59, sec. 10; State ex rel. Taylor, Public Admr., v. Wurdeman, 108 S.W. 144, 129 Mo. App. 263; Ex parte Zorn, 145 S.W. 62, 241 Mo. 267; Peck v. Fillingham's Estate, 202 S.W. 465, 199 Mo. App. 277; In re Elliott's Estate v. Wilson, 27 Mo. App. 218. (23) The Legislature possesses all legislative powers not prohibited by the Constitution, expressly or by necessary implication. State ex rel. v. Koeln, 61 S.W.2d 750, 332 Mo. 1229. (24) And our State Constitution is not a grant of, but a limitation on, legislative powers, so the Legislature may enact any law not expressly or impliedly prohibited by the Federal or State Constitutions. State ex rel. v. Canada, 113 S.W.2d 783, 342 Mo. 121; Downey v. Schrader, 182 S.W.2d 320, 353 Mo. 40. (25) The Constitution of Missouri, Section 16, of Article V, vests the probate court in each county with jurisdiction of all matters pertaining to the appointment of guardians and curators of persons of unsound mind, and the provisions of Senate Bill No. 284 [Sections 9321 to 9347, Mo. R.S. Ann. (Vol. 19), 1946 Cum. An. Pk. Pts.], merely prescribes the mode of procedure by which that jurisdiction is to be exercised, and nothing in the Constitution or laws of this state prohibit such legislation. The very fact of the grant of express powers inevitably carries with it a corresponding grant of such implied powers as may be necessary and essential to the performance of the powers expressly granted. The provisions of Senate Bill No. 284 [Sections 9321 to 9347, Mo. R.S. Ann. (Vol. 19), 1946 Cum. An. Pk. Pts.], is an addition to an enlargement of the powers granted to probate courts by Article 18 of Chapter 1, Revised Statutes of Missouri, 1939, and amendments thereto. State ex rel. v. Mills, 133 S.W. 22, 231 Mo. 493; State ex rel. v. Guinotte, 165 S.W. 718, 257 Mo. 1; State ex rel. v. Armstrong, 9 S.W.2d 600, 320 Mo. 1122; Ex parte Higgins v. Hoctor, 62 S.W.2d 410, 332 Mo. 1022; In re Claus' Estate, 147 S.W.2d 199. (26) The question of jurisdiction of lunacy proceedings is regulated by statute, consistent with the Constitution; and, in accordance with these provisions, it may be exercised by the particular court therein designated and on whom it has been conferred. 32 C.J., pp. 628-629, secs. 165-166; 44 C.J.S., pp. 54-62, secs. 8-10; Ruckert v. Moore, 295 S.W. 794, 317 Mo. 228; Moberly v. Powell, 86 S.W.2d 383, 229 Mo. 665 Mo. App. 857; Hines v. Hook, 89 S.W.2d 52, 338 Mo. 114. (27) Power to appoint a guardian of an insane person, necessarily implies power to inquire into his mental condition. Redmond v. Railroad Co., 126 S.W. 159, 225 Mo. 721. (28) In lunacy proceedings, the state, as parens patriae, — the community, — society, — has an interest, both to protect the insane person and to protect the public from possible injury. State ex rel. v. Skinker, 126 S.W.2d 1156, 344 Mo. 359; State ex rel. Paxton v. Guinotte, 165 S.W. 718, 257 Mo. 1. (29) At common law insane persons were the particular and peculiar wards of chancery. In re Estate of Connor, 162 S.W. 252, 254 Mo. 65; 28 Am. Jur., p. 661, sec. 10; p. 663, sec. 12; 15 C.J., p. 1018, sec. 429. (30) An act of the Legislature should not be declared unconstitutional unless it appears beyond a reasonable doubt that it is in contravention of the Constitution. There is a presumption of validity of a statute, and if there is doubt it must be resolved in favor of validity. Hines v. Hook, 89 S.W.2d 52, 338 Mo. 114; State ex rel. v. Schmoll, 282 S.W. 702, 313 Mo. 693; Kusnetsky v. Security Ins. Co., 281 S.W. 47, 313 Mo. 143; State ex rel. v. Southwestern Bell Tel. Co., 179 S.W.2d 77, 352 Mo. 715; Missouri Electric Power Co. v. City of Mountain Grove, 176 S.W.2d 613, 352 Mo. 262; Attorney General v. Pelletier, 240 Mass. 264. (31) While a legislative body cannot delegate its authority, it may, however, empower certain officers to carry out in detail the legislative purposes. Ex parte Williams, 139 S.W.2d 485, 345 Mo. 1121, certiorari denied, Williams v. Golden, 61 S.Ct. 42, 311 U.S. 675, 85 L.Ed. 434; Cavanaugh v. Gerk, 280 S.W. 51, 313 Mo. 375. (32) When, upon a preliminary question of jurisdiction depending wholly upon the law, and not upon the facts, the lower court misconceives its jurisdiction of the cause and refuses to proceed to a final determination upon the merits, and dismisses the cause for want of such jurisdiction, the appellate court will issue its writ of mandamus to compel the lower court to reinstate the matter and proceed with the hearing of the cause to a final determination. State ex rel. v. Kirkwood, 138 S.W.2d 1009, 345 Mo. 1089; State ex rel. v. Shain, 106 S.W.2d 898, 341 Mo. 19; State ex rel. v. Brown, 48 S.W.2d 857, 330 Mo. 220.
Glendy B. Arnold for respondent.
This is an original proceeding in mandamus to test the constitutionality of all or parts of thirteen statutes numbered Sec's 9321, 9328, 9329, 9333, 9334, 9335, 9336, 9338, 9339, 9344, 9345, 9346 and 9347, Laws Mo. 1945, Senate Bill 284, as against Art. II and Sec's 16 and 17, Art. V, Const. Mo. 1945.
The relatrix, Victoria L. Kowats, a citizen and resident of the City of St. Louis [which is also a county under Sec. 31, Art. VI, Const. 1945] seeks to compel the respondent, Hon. Glendy B. Arnold, judge of the probate court of said city, to assume jurisdiction under the foregoing statutes of an insanity inquisition filed by her in his court, wherein the objective is to have a named poor person of the city adjudged insane and committed to a state hospital or the city sanitarium at public expense. The respondent declines to entertain the cause on the sole ground that the cited statutes conflict with the above constitutional provisions, insofar as the former purport to vest such jurisdiction in the probate courts, except when the inquisition is coupled with an application for the appointment of a guardian or curator. The respondent filed a written opinion, which, by agreement, is to be taken as and for a return to our alternative writ.
We need not review at any length the recently enacted statutes involved, for they admittedly vest probate courts with the jurisdiction disputed by respondent. Thus, Sec. 9328 provides: "The probate courts of the several counties shall have power to send to a state hospital such of the insane of their respective counties as may be entitled thereto." Then it continues that the county shall pay for the support and maintenance of the patient. The sections following prescribe a procedure in such cases. The probate court does not order that the county shall pay such expenses: it merely makes an order setting forth that the person under adjudication is a fit subject to be sent to a specified state hospital, and the liability of the county follows by operation of law under the statute. The only authority the court has in that regard is, that under Sec. 9347 it may order its clerk to transmit to the superintendent of the designated hospital a certificate stating the patient has sufficient estate to support and maintain him at the hospital, in which case he becomes a pay patient by operation of the statute. Under Sec. 9345, if the finding of insanity and order are made by the probate court of the city of St. Louis, the hospital commissioner, or assistant hospital commissioner of the city may make supplemental orders authorizing the patient to be committed either to a state hospital or to the city sanitarium.
The respondent's opinion and return invokes the familiar provisions of Art. III, Const. 1875, now Art. II, Const. 1945, dividing the powers of the State government into three distinct departments — the legislative, executive and judicial — and forbidding that either shall encroach on the others. He points out that our probate courts belong to the judicial branch of the government; but maintains their power under the challenged statutes to charge the upkeep of the indigent insane to the counties is ministerial and executive. Thence he argues the statutes are unconstitutional, because that power conferred by them properly belongs to the county courts, or some agency of the executive department. Further, he contends Sec. 16, Art. V, Const. 1945 excludes such jurisdiction, because it contains no provision whatever about insanity except that it authorizes [256] probate courts to appoint "guardians and curators of minors and persons of unsound mind," and to administer their estates. And finally, as an aid to the proper construction of our present statutory and constitutional law, respondent refers to our former law on the subject and the decisions construing it. We set out here in juxtaposition the pertinent parts of the two constitutional provisions directly involved, then and now:
Sec. 36, Art. VI, Const. 1875 Sec. 7, Art. VI, Const. 1945 Sec. 34, Art. VI, Const. 1875 Sec. 16, Art. V, Const. 1945
"In each county there shall be "In each county (not framing a county court, which shall be a and adopting its own charter or court of record, and shall have adopting an alternative form of jurisdiction to transact all county county government,) there shall and such other business as may be be elected a county court of three prescribed by law. The court shall members which shall manage all consist of one or more judges, not county business as prescribed by exceeding three, of whom the probate law, and keep an accurate record judge may be one, as may be of its proceedings. The voters of provided by law." any county may reduce the number of members to one or two as provided by law." [After providing for the establishment of a probate court in every county] — "which shall be a "There shall be a probate court court of record . . . Said court in each county with jurisdiction shall have jurisdiction over all of all matters pertaining to probate matters pertaining to probate business, to granting letters business, to granting letters testamentary testamentary and of administration, and of administration, the appointment of guardians the appointment of guardians and and curators of minors and curators of minors and persons of persons of unsound mind, settling unsound mind, settling the accounts the accounts of executors, administrators, of executors, administrators, curators and guardians, curators and guardians; and and the sale or leasing of lands the sale or leasing of lands by administrators, by executors, administrators, curators curators and guardians and guardians, and of such . . ." other matters as are provided in this Constitution." It will be found that said Sec. 36, Art. VI, Const. 1875, dealing with county courts, appeared under the title, "Judicial Department"; whereas said Sec. 7 in the Constitution of 1945 appears in Art. VI, now covering "Local Government". Again, under the former Constitution they were courts of record; whereas in the present Constitution that provision is omitted. Further, said Sec. 36 of the 1875 Constitution provided county courts should have jurisdiction to transact all county business and such other business as may be prescribed by law; whereas said Sec. 7 of the present Constitution provides the county court shall manage all county business as prescribed by law. Apparently, said Sec. 36 of the former Constitution contemplated there was a class of business designated as "all county business", which the county courts had direct constitutional power to transact, and that the General Assembly might authorize them to transact other business. But said Sec. 7 of the present Constitution changed that provision and merely authorizes them to manage all county business as prescribed by law. And not only that: the section makes it possible for county courts to be abolished altogether in any county "framing and adopting its own charter or adopting an alternative form of county government."As regards probate courts, the situation is different. So far as pertinent here Sec. 34, Art. VI, Const. 1875 and Sec. 16, Art. V, [257] Const. 1945 are almost identical, save in two particulars. The latter section omits the provision declaring probate courts shall be courts of record, but it is included in the next section, 17. And the concluding lines of Sec. 16 are new, reading "and of such other matters as are provided in this Constitution." Probate courts or judges are mentioned in eleven other sections of the Constitution of 1945. But none of these appear to have any bearing on this case except Sec. 17, Art. V, supra, and Sec. 1, Art. V, which makes probate courts constitutional courts but omits county courts, though they were included in the corresponding section of the Constitution of 1875. Thus it will be seen the authority of county courts is much restricted by the Constitution of 1945, whereas that of the probate courts is maintained, and perhaps increased because of the elimination of county courts as judicial tribunals. Of that we shall speak presently.
Art. V, Sec's 1, 4, 7, 17, 18, 23, 24, 25, 26, 27, 29, and Art. VI, Sec. 18 (f), (g).
Respondent's opinion and return cites Downey v. Schrader, 353 Mo. 40, 44(4), 182 S.W.2d 320, 323(7). In that case the contention was that Sec. 34, Art. VI, Const. 1875 vested sole jurisdiction to hold lunacy inquisition in the probate courts; and that Sec. 36, Art. VI did not authorize the county courts to entertain such proceedings even where an indigent insane person was involved. For that reason it was asserted that Sec's 9328, 9335-9 and 9341, R.S. 1939-Mo. R.S.A. were void because unconstitutional. These are part of the sections repealed by Senate Bill 284, supra, which is under scrutiny here. We overruled that contention in the Downey case and held the county courts did have that jurisdiction under Sec. 36, Art. VI, supra, as a part of the court's "county business", or business "provided by law", when the insane poor were involved, for whose keep the county would have to pay.
Respondent says we further held the probate court would not have that power under Sec. 34, Art. VI, Const. 1875, for the purpose of committing insane patients to a state hospital; and that Sec. 34 then was the same as Sec. 16, Art. V, Const. 1945 is now. We think we did not go quite that far, but concerning probate courts we did say: "When the probate court holds a similar hearing for the purpose of appointing a guardian and administering an estate, it is transacting probate business. But they are not the same, and have not been through the years. Matters of probate business, as commonly understood and under all the authorities, pertain to the proving of wills, the appointment of guardians and curators, and the administration and settlement of decedents, incompetents and the like. 3 Words Phrases (Perm. Ed.), p. 203; 26 ibid., p. 750; 34 ibid., p. 59."
Another case cited by respondent is Van Loo v. Osage County, 346 Mo. 358, 361(1), 366(3), 141 S.W.2d 805, 806, 809(2). There, a probate court had held an inquisition on the sanity of a poor person under Sec. 447, R.S. 1939-Mo. R.S.A., and a guardian was appointed. The main questions at issue were: whether that court had jurisdiction over the indigent insane; or whether the jurisdiction was solely in or concurrent with that of the county courts; and if the probate courts did have such jurisdiction, was it authorized to commit the person to a state hospital at public expense? The decision held the probate court had concurrent jurisdiction to hold insanity inquisitions on poor persons, but could not commit them to state hospitals. The latter ruling, however, was not based on the Constitution (of 1875) but on the county court statutes, Sec's 9328, 9335-9, R.S. 1939-Mo. R.S.A. supra (now repealed by Senate Bill 284 supra), as construed in Ussery v. Haynes, 344 Mo. 530, 537(1), 127 S.W.2d 410, 414(1).
On the other point — that the probate courts did have concurrent jurisdiction with the county courts to adjudicate the insanity of indigent persons — the Van Loo case pointed out that insanity inquisitions had been authorized ever since the enactment in 1817 of 1 Mo. Territorial Laws, p. 508, the jurisdiction being vested in the circuit courts, which then had probate jurisdiction, 1 Mo. Territorial Laws, p. 395. Probate courts were originally established by statute, 1 R.S. 1825, p. 268. Jurisdiction was conferred on them to appoint or displace [258] guardians of insane persons by 1 R.S. 1825, p. 270; and authority to hold lunacy inquisitions by 1 R.S. 1825, p. 429. These inquisitorial and appointive powers were transferred to the county courts by R.S. 1835, p. 323; R.S. 1845, p. 593; and R.S. 1855, p. 864. And by G.S. 1865, p. 234 they were vested in the county or probate courts.
But after the probate court was established as a constitutional tribunal by Sec. 1, Art. VI, Const. 1875, the power under that line of statutes was restricted to it by Sec's 5787, 5791, R.S. 1879, and has been ever since. The "county court statutes", as we have called them, Sec's 9328, 9335-9, R.S. 1939 — Mo. R.S.A., supra, appear to have had their inception in Laws Mo. 1909, pp. 572, 585, Sec. 47 et seq. dealing with Eleemosynary Institutions, and prior statutes dealing with "Asylums", running back to R.S. 1855, p. 226, Sec. 1, and p. 228, Sec. 8 et seq.; and Laws Mo. 1847, p. 62, sec. 15, which latter authorized the establishment of the first asylum at Fulton. These statutes disclose their paramount objective was the handling of the indigent insane patients whom the county would have to maintain. Our duty is to determine whether those objectives may be reached through our present statutory and constitutional law.
The first fact with which we are confronted is that under Sec. 7, Art. VI, Const. 1945 county courts are no longer courts in a juridical sense, but are ministerial bodies managing the county's business, with certain taxing and districting power which we are not here attempting to delimit. We cannot look to them for relief on the vexing question presented. It was doubtless for that reason that Senate Bill 284 was enacted, vesting in the probate courts the power to conduct insanity inquisitions. But Sec. 16, Art. V, Const. 1945, defining the powers of probate courts, is almost exactly like Sec. 34, Art. VI, Const. 1875 covering the same subject matter. In neither is there any express authorization to hold insanity inquisition. Sec. 16 merely empowers probate courts to appoint guardians and curators of persons of unsound mind, though, of course, to do that the court would first have to determine whether the person is of unsound mind.
However, in the sections of Senate Bill 284 cited in the beginning, there is no provision anywhere for the appointment of a guardian or curator. The whole tenor of the Act is that the sole questions for determination are whether the person under adjudication: is indigent; dangerous to himself and/or others; needs treatment and restraint; and should be sent to a state hospital at public expense. Can the probate court exercise that jurisdiction independent of the appointment of a guardian or curator? Respondent maintains that it cannot.
Sec. 16, Art. V, Const. 1945 is not by any means as clear and definite as we might wish. But even under the Constitution of 1875 the Van Loo case, supra, held a probate court could inquire into the sanity of an indigent person. And when the present Sec. 447, R.S. 1939-Mo. R.S.A. was amended by Laws Mo. 1903, p. 200, through the addition of a proviso that the probate court should "not have jurisdiction to inquire into the insanity of any person who is the owner of no property," this court held in the Redmond case that the amendment was unconstitutional; and it was eliminated by Laws Mo. 1913, p. 94. The reasoning of the Redmond case was that the probate courts' constitutional jurisdiction under Sec. 34, Art. VI, Const. 1875 could not be restricted to persons with property, because: it covered all insane persons; the power to determine sanity vel non was a foundational part of the proceeding; and an insane person needs a guardian over his person even though he have no property.
Redmond v. Q., O. K.C. Rd. Co., 225 Mo. 721, 731-2(2), 126 S.W. 159, 162 (4-6).
This last holding might be thought to signify that a guardian must be appointed as a part of the inquisition, as had been done in that case. And yet, if an indigent person be confined in a state hospital he is under restraint, and in a sense needs no guardian over his person, at least for the time being. Further, Sec. 501, R.S. 1939-Mo. R.S.A. in our probate law provides, as it has at least ever since the enactment of G.S. 1865, p. 238, sec. 49, that if any insane person be admitted to a state hospital as a patient, his [259] guardian shall pay his expenses out of the ward's estate; but if the patient shall at any time come under the class of "insane poor persons" as specified in what we have referred to as the "asylum" or "county court" law, then the county must pay the expenses as provided therein. This statute is addressed to a situation where the patient had property in the beginning and became indigent later. But on that theory, it seems there would be no need to appoint a guardian or curator at all when the patient is indigent from the outset.
We have traced the history of our law on this subject rather fully to show the background when the Constitution of 1945 was adopted. Under the Constitution of 1875 both the probate courts and the county courts were constitutional courts, and the statutory law for both ran parallel. As we said in the Downey case, supra, their spheres then were somewhat different. But now, under the Constitution of 1945 the powers of the county courts have been narrowed and their status changed. Is it unwarranted to say that the constitutional powers of probate courts over the insane may thereby have been correspondingly increased, even though the provisions of Sec. 16, Art. V, Const. 1945 remains about the same as before? The rule of constitutional construction is almost axiomatic that a constitution should be construed as a whole, and its different provisions on the same subject construed together. And since this is true, it clearly follows that a change in one may affect another, which is, itself, in terms unchanged.
But even if it were otherwise, we think the difference between the powers of county and probate courts while the Constitution of 1875 was in force, was essentially due to the statutes governing the two, and that has been rectified by Senate Bill 284. We can see no reason why a probate court may not be authorized by law to order indigent insane persons sent to the state hospitals at public expense. Respondent argues ab inconvenienti that under the 1875 Constitution and statutory authority the city of St. Louis treated the commitment of thousands of insane paupers to its asylums as a ministerial matter to be handled by its Hospital Boards and other municipal authorities; and that the enforcement of probate inquisitions will greatly increase the expense. That, of course, is a question for the General Assembly.
Respondent's final point is that under Senate Bill 284 the probate court may order the person under adjudcation sent to a state hospital or city sanitarium and charge his upkeep to the City without notice to it or an opportunity to be heard, in violation of due process. But in these proceedings the city is a county, a unit of the State government; and for nearly a hundred years our laws have subjected each county to liability for the maintenance of its insane poor in the state asylums. While the City has a special charter and maintains its own mental sanitariums, yet its charter must be in harmony with the law of the state. And we are unable to see why it, anymore than any other county of the state, should be entitled to notice of each insanity inquisition on an insane pauper. The statute fixes the liability.
After consideration of the points made in respondent's return, we conclude they are without merit, and that the alternative writ of mandamus heretofore issued should be made peremptory. It is so ordered. All concur.
Respondent's motion for rehearing invokes State ex rel. Buckner v. McElroy, 309 Mo. 595, 608, 274 S.W. 749, 751, which was not cited below in the Probate Court's memorandum, or in our opinion. It ruled Sec. 6, Art. VI, Const. Mo. 1875 vested in the county courts "jurisdiction to transact all county business", and specifically the sole authority to manage and pay the maintenance costs of specified public institutions for the protection, care and education of delinquent and dependent children, to the exclusion of a Board of Paroles composed of circuit judges, created by a statute. That was true then, but as pointed out in the principal opinion, county courts are not constitutional courts now, and Sec. 7, Art. VI, Const. [260] 1945 only gives them power to manage all county business as prescribed by law. They may be abolished altogether in certain counties. And the power to manage public institutions is quite a different thing from the power to adjudicate at insanity inquisitions. We think the case is not in point.
Another new point made in the motion is that under the Scheme and Charter of the City of St. Louis, adopted in 1876 pursuant to Sec. 20, Art. IX, Const. 1875, the Municipal Assembly took over the powers of the county court. And the question is asked: can those powers, as regards insanity inquisitions and commitments affecting the insane poor, be taken from the City by Senate Bill 284, supra. Respondent answers that question by saying the contrary was held by this court en banc in Lefman v. Schuler, 317 Mo. 671, 296 S.W. 808.
In that case the sheriff of the city sought to assume the powers of the city jailer under a general statute, now Sec. 9195, R.S. 1939-Mo. R.S.A., providing the sheriff of each county shall have charge of the jail. The pertinent part of that identical statute had been in force at least since R.S. Mo. 1835, p. 335, sec. 2, long before the St. Louis Charter was adopted in 1876. But notwithstanding this general statute, special Acts were passed by the Legislature in 1841, 1851 and 1866, providing or permitting that a jailer should be in charge of the jail in St. Louis County. Such special Acts were valid in those days, and the Act of 1866 was not nullified by Sec. 53, Art. IV, Const. 1875 banning special and local laws in great part.
The 1866 Act was in force when the City and County of St. Louis were merged by the Charter of 1876, and the jailer was continued in charge of the jail in the City. By Laws Mo. 1877, p. 188 the Legislature recognized that fact, and provided the duties of the sheriff of the City should be the same as those of the sheriff of the County under the General and special laws then in force, except where inconsistent with the Charter. And Laws Mo. 1879, p. 39, provided all general and special laws applicable to sheriffs of the several counties of the State before the adoption of the Charter, should still apply to the sheriff of the City. This history was reviewed in the Lefman case, cited by respondent, and it held on a construction of the prior laws that the jailer had not been deprived of his duties; not that they could not be taken away from him.
The third point in the motion for rehearing is this. Respondent complains that the probate court in this case ruled the power to hold insanity inquisitions and issue commitments thereunder is executive in nature and not judicial. And he insists he is entitled to a "categorical answer" whether that holding was correct. Our answer is that the power is now judicial and not executive. When the county court exercised that power under Sec. 36, Art. VI, Const. 1875, it was a constitutional court. The exercise of the power may deprive the subject of precious constitutional rights, liberty and the enjoyment of property, which cannot be done without due process of law. And it will not do to say in such a case that relief can be obtained afterward by habeas corpus. 32 C.J., p. 626, sec. 162; p. 627, sec. 164; p. 628, sec. 165; p. 680, sec. 349; 28 Am. Jur., p. 661, secs. 9, 10; p. 672, sec. 25; Hunt v. Searcy, 167 Mo. 158, 171-182, 67 S.W. 206, 210-214; Conway v. Robinson (Mo. Div. 1), 178 S.W. 154, 158(3); In re Conner's Estate, 254 Mo. 65, 76-80(2), 162 S.W. 252, 255(3); 49 L.R.A. 1108; State ex rel. Paxton v. Guinotte, 257 Mo. 1, 11-12(2), 165 S.W. 718, 721, 51 L.R.A. (N.S.) 1191, Ann. Cas. 1915D, 658; Re Moynihan v. Hoctor, 332 Mo. 1022, 1034(6), 62 S.W.2d 410, 416(8), 91 A.L.R., 74.
For the reasons stated the motion for rehearing is overruled.