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finding a constitutional question was not preserved when the relator failed to cite any provisions of the then in effect 1875 Constitution
Summary of this case from Faatz v. AshcroftOpinion
No. 39948.
November 11, 1946.
1. PROHIBITION: Pleading: Allegations of Petition Not Denied. Allegations of the petition which are not denied by the return, but are alleged to be moot, must be taken as true.
2. PROHIBITION: Constitutional Law: Issues Moot: Constitutional Question Not Properly Raised. When the other issues are moot the court should not consider a constitutional issue raised in the return. And the constitutional question was not properly raised.
3. CONSTITUTIONAL LAW: Effect of Schedule of 1945 Constitution. The schedule of the 1945 Constitution prevents such Constitution from being invoked prior to July 1, 1946 for the purpose of attacking a conflicting statute.
4. PROHIBITION: Rule Made Absolute. Since the return does not deny or confess and avoid the allegations of relator's petition, the provisional rule is made absolute.
PROVISIONAL RULE MADE ABSOLUTE.
E.W. Allison pro se and Claude T. Wood for relator.
(1) The Supreme Court has jurisdiction. The four cases involved in the trial court for and in connection with which the respondent judge exceeded and abused his jurisdiction, against which this prohibition is sought, were and all are felony cases of which the Supreme Court would have exclusive appellate jurisdiction; and the Supreme Court has exclusive jurisdiction to issue a writ of prohibition in cases where it would have exclusive appellate jurisdiction. State ex rel. Ghan v. Gideon, 119 S.W.2d 89. (2) The relator in this case, although a stranger to the four criminal cases whereat the writ of prohibition is aimed, is in law entitled to ask for prohibition, because: A relator may ask for prohibition notwithstanding such relator is a stranger to the proceeding whereat the writ is aimed. State ex rel. Smith v. Joynt, 127 S.W.2d 708. (3) Respondent's purported return to the preliminary writ and relator's petition is an absolute nullity, and relator's motion to strike respondent's purported return from the files and for an order making the provisional rule in prohibition absolute should be sustained. No attempt is made to deny any material allegation in the petition, nor is avoidance of the material allegations of relator's petition pleaded or set out in the purported return, and the allegations of relator's petition, on which the provisional writ issued, stand confessed and admitted. State ex rel. K.C. Exchange Co. v. Harris, 81 S.W.2d 632; State ex rel. Caulfield v. Broaddus, 234 Mo. 331; State ex rel. Darst v. Wurdeman, 264 S.W. 402. (4) The exhibits only casually referred to in the purported return, line 3 of the first paragraph thereof, can not be considered and should be treated as wholly extraneous, because: The respondent does not attempt to make the purported exhibits a part of his purported return. State ex rel. Paradise Catering Co. v. Ossing, 16 S.W.2d 77. (5) No constitutional question is properly raised by respondent's purported return. The unauthorized acts of the respondent complained of in this prohibition proceeding occurred on April 1, 1946; therefore, under Section 2 of the Schedule, the Constitution of 1945 is inapplicable. (6) Moot question: State v. Halbrook, 311 Mo. l.c. 678, 279 S.W. 395. (7) The burden is on the party relying on the unconstitutionality of a statute to specifically point out wherein it is unconstitutional. Automatic Sprinkler Co. of America v. Star Clothing Manufacturing Co., 267 S.W. 888; Davidson v. Hartford Life Ins. Co., 151 Mo. App. 561; City of Independence v. Knoepker, 205 Mo. 338; State ex rel. Wolfe v. Missouri Dental Board, 221 S.W. 70, 282 Mo. 292. (8) Every legislative act is presumed constitutional and will not be declared unconstitutional unless it is clearly so. Mo. Pacific Railroad Co. v. Boone, 46 S.Ct. 341, 270 U.S. 466; State ex rel. Kelley v. Kirby, 168 S.W. 746. (9) The legislative title of committee substitute for Senate Bill 34 (Laws of Missouri, 1943, pages 383 to 397, inclusive), Section 96 being a part of the act, is sufficient, and Section 96 is constitutional. Graves v. Purcell, 85 S.W.2d 543; Massey-Harris Harvester Co. v. Federal Reserve Bank, 104 S.W.2d 385; Willhite v. Rathburn, 61 S.W.2d 708, 711; State v. Thomas, 256 S.W. 1028; Ex parte Karnstrom, 249 S.W. 595; State v. Brodnax, 228 Mo. 25; Brodnax v. State of Missouri, 31 S.Ct. 238, 219 U.S. 285, 55 L.Ed. 219; State ex inf. Barrett ex rel. Bradshaw v. Hedrick, 241 S.W. 402; State ex rel. School District v. Gordon, 223 Mo. 1; State ex rel. Lorantos v. Terte, 23 S.W.2d 120; Star Square Auto Supply Co. v. Gerk, 30 S.W.2d 447.
J.E. Taylor, Attorney General, and Drake Watson, Assistant Attorney General, for respondent.
(1) The provisional rule should be dissolved because the proper construction of Section 96 of the Civil Code, Laws of 1943, page 383, is that ten days' preparation time, after the beginning of a recess of twenty days or more, is all that is allowed before the court is authorized to try the case (assuming the constitutionality). Sec. 96 of the Civil Code, 1943 Session Acts, p. 383; Sec. 1089, R.S. 1939; Grier v. Railway Co., 296 Mo. 523, 228 S.W. 454. (2) Section 96 of the Civil Code is unconstitutional because the title of the act violates the Constitution, in that said statute contains more than one subject matter in the body of it, and also because the title makes no mention of the criminal law which the body of the act seeks to change. Sec. 23, Art. III, 1945 Mo. Constitution; Sec. 28, Art. IV, 1875 Mo. Constitution; Secs. 1086, 1087, 1089, 4042, 4043, 4044, R.S. 1939; State ex rel. Mueller Baking Co. v. Calvird, 338 Mo. 601, 92 S.W.2d 184; Mayes v. United Garment Workers of America, 6 S.W.2d 333; Southard v. Short, 8 S.W.2d 903; Fidelity Adjustment Co. v. Cook, 339 Mo. 45, 95 S.W.2d 1162; Woodward Hardware Co. v. Fisher, 269 Mo. 271, 190 S.W. 576. (3) The provisional rule should be dissolved because Section 96 is class legislation and also violates the equal protection clause and due process clause. Sec. 40, Art. III, par. 28, 1945 Constitution; Sec. 53, Art. IV, par. 26, 1875 Constitution; In re French, 315 Mo. 75, 285 S.W. 513; State v. Walsh, 136 Mo. 400, 37 S.W. 1112; In re Flukes, 157 Mo. 125, 57 S.W. 545. (4) Said statute is unconstitutional because it is enacted for private purpose. Authorities under Point (3). State ex rel. v. Railroad, 246 Mo. 512, 152 S.W. 28; Secs. 4, 6, Art. III, new Constitution; Secs. 4, 6, Art. IV, old Constitution; Sec. 12, Art. III, new Constitution; Sec. 12, Art. IV, 1875 Constitution; Sec. 15, Art. III, new Constitution; Sec. 15, Art. IV, old Constitution; Sec. 9, Art. VII, new Constitution; Sec. 4, Art. XIV, old Constitution. (5) The provisional rule should be dissolved because Section 96 of the Civil Code violates the constitutional provision that the courts shall remain open and afford certain remedy and administer justice without sale, denial or delay, and Article II provides that the legislative and judicial powers shall be separate. Sec. 14, Art. I, 1945 Constitution; Sec. 10, Art. II, 1875 Constitution; Art. II, 1945 Constitution; Art. III, 1875 Constitution; State ex rel. Kennedy v. Remmers, 340 Mo. 126, 101 S.W.2d 70; Secs. 4085, 4086, R.S. 1939; Sec. 14, Art. I, 1945 Constitution; Sec. 10, Art. II, 1875 Constitution; State ex rel. Snip v. Thatch, 195 S.W.2d 106; Secs. 1438, 1464, 1467, 1560, 1590, 1788, R.S. 1939.
This is an original proceeding in prohibition to prohibit respondent as judge of the circuit court of Phelps County from proceeding to try four felony cases pending on the docket of that court on May 2, 1946.
Relator's petition for prohibition alleges that he was a duly elected, qualified and acting member of the 63rd General Assembly of Missouri and was the attorney of record for the defendants in these four cases, styled and numbered as follows: No. 2831, State of Missouri v. Ira Attebery; [668] No. 2837, State of Missouri v. Samuel Herron; No. 2838, State of Missouri v. Samuel Herron; and No. 2868, State of Missouri v. Oris Massey and Hayward Fletcher.
April 1, 1946, was the first day of the April session of the circuit court of Phelps County and on that date the General Assembly was in session. When respondent called the above mentioned cases, pending on the criminal docket of that court on that date, relator as attorney for the defendants filed in each case his application and affidavit for a continuance, thereby complying with Section 96, Laws of Missouri, 1943, page 383. Thereupon respondent made an order in each case continuing each one until May 2, 1946, and setting all four cases for trial on that date. He orally ordered these four defendants to be ready for trial on that date and ordered the jury to return at that time.
Pursuant to the acts and orders of respondent, the prosecuting attorney caused subpoenas to be issued for state's witnesses and placed in the hands of the sheriffs of the respective counties in which the witnesses lived. The witnesses were served and ordered to appear for the trials on May 2, 1946.
Relator's petition states that the General Assembly was in session on April 1 and 2, 1946, and relator was in actual attendance on it, but on April 3, 1946, the General Assembly recessed to reconvene on May 6, 1946. It further states that the setting of all four cases on the same day and ordering the four defendants to appear and be ready for trial was not only in excess of respondent's jurisdiction when such order violated Section 96 of the Civil Code, but such orders were arbitrary, oppressive and capricious.
On April 30, 1946, this court issued its provisional writ of prohibition directing respondent to take no further steps in any of the four cases until further orders of this court, and to show cause, if any, on or before May 31, 1946, why our writ of prohibition should not be made absolute as prayed for in relator's petition.
On May 29, 1946, respondent, pro se, filed his return to our provisional writ in prohibition, which is as follows:
"Respondent, for return to the Preliminary Rule herein, says that he obeyed to the letter the dictates of Section 96 of the Civil Code of Missouri, as will appear from the certified copies of continuances hereto attached.
"It will be observed that the theory of relator is that 20 plus 10, i.e. 30, days must elapse between the recessing and the trial. This is erroneous but in these cases that time did elapse. It is alleged that the legislature recessed on April 3rd. The recessing resolution shows April 2nd, which gives the full 30 days. Senate Journal, page 3404.
"All this is now moot. But the legislature is again in session and this statute is still on the books. No doubt is will, if valid, be used to secure further delay.
"Therefore, the only point we desire to consider is the constitutionality of Section 96 of the Civil Code of Missouri."
Respondent then attempted to assign several reasons why Section 96, supra, is unconstitutional, which will be referred to later in this opinion.
To respondent's return relator filed a motion to strike the return for the reasons that "the purported pleading filed in this proceeding by respondent in no sense constitutes a return to the writ and petition;" that the "pleading wholly fails to traverse a single allegation of facts;" that it does not "plead any matters or conditions in avoidance of the verified allegations in relator's petition on which the provisional writ was issued;" and that "no constitutional question is properly raised or pleaded by the respondent's purported pleading filed herein, quoting a series of abstract propositions of law raises no constitutional question for the court's consideration or determination." It asked that the allegations of relator's petition stand admitted and the writ be made absolute.
Under the rules of good pleading respondent is obliged to either deny or confess and avoid every material allegation in the writ and relator's petition. Every allegation [669] of relator's petition which is not denied by the return or confessed and avoided therein is to be taken as true. State ex rel. Kansas City Exchange Co. v. Harris, Judge, 229 Mo. App. 721, 81 S.W.2d 632; State ex rel. Cytron v. Kirkwood, 340 Mo. 185, 100 S.W.2d 450.
In his return respondent does not deny or confess any allegations in relator's petition; in fact, he says in his return that points made by relator are moot, and "the only point we desire to consider is the constitutionality of Section 96 of the Civil Code of Missouri." So, the only matter before us is the constitutionality of Section 96, supra. Relator contends that the constitutional question is not properly raised and, therefore, is not before us.
If the questions presented by relator's petition and our provisional writ are moot, then we cannot consider the contention that Section 96, supra, is violative of our Constitution. State v. Halbrook, 311 Mo. 664, 279 S.W. 395. Moreover, there is another reason why the constitutionality of this section cannot be decided by us and that is that the return does not point out why certain sections of our Constitution are violated. In fact, the return is no more than a brief on the constitutional questions, citing certain provisions of our new Constitution and other authorities. The failure to specifically point out wherein and why the Constitution is violated fails to properly raise a constitutional question. Hartzler v. Metropolitan Street Ry. Co., 218 Mo. 562, 117 S.W. 1124.
No section of the Constitution of 1875 is relied upon by respondent, but by his return he relies upon our 1945 Constitution. The unauthorized acts of respondent complained of by this action occurred on April 1, 1946, therefore, under Section 2 of the schedule of the 1945 Constitution, Section 96, supra, could not violate the 1945 Constitution. This section of the schedule reads: "All laws in force at the time of the adoption of this Constitution and consistent therewith shall remain in full force and effect until amended or repealed by the general assembly. All laws inconsistent with this Constitution, unless sooner repealed or amended to conform with this Constitution, shall remain in full force and effect until July 1, 1946."
We hold no constitutional questions in regard to the validity of Section 96, supra, were properly raised and, therefore, those questions are not before us for review.
Since respondent's return does not deny or confess and avoid the allegations of relator's petition and our provisional writ, we hold that relator's motion to strike respondent's return and to make our provisional rule absolute must be sustained. Our provisional rule in prohibition is hereby made absolute. All concur, except Gantt, J., not sitting.