Summary
holding that if a new statutory section is unconstitutional, the repealing clause is likewise invalid, and the old section remains in force
Summary of this case from Schaefer v. KosterOpinion
January 4, 1941.
1. STATUTES: Construction. It is the duty of the Supreme Court to construe a statute so as to avoid conflict with the Constitution; and it should not hold the statute invalid unless its unconstitutionally appears beyond a reasonable doubt.
If the title, though general, clearly expresses the purpose of the act any legislation reasonably within the title is valid.
2. STATUTES: Title of Act. If the title of an act is restrictive, the act is also restrictive and cannot include anything beyond the restrictive wording of the title.
The purpose of the constitutional provision, Section 28, Article IV, is to prevent surprises or fraud upon the legislators by barring from the body of a bill everything not indicated by the title.
3. STATUTES: Mechanics' Lien: Title. Where the title of an act to amend the Mechanics' Lien Law referred to an article and chapter as entitled: "Liens of contractors, materialmen and laborers against railroads," providing that any person or persons having claims for which they are entitled to liens under this chapter, may assign to any other person all their rights, and the assignee may file a lien, etc., such act pertained to liens against railroads only as expressed in the title, and the act therefore conflicts with the constitutional provisions of Section 28, Article IV.
4. STATUTES: Repealing Clause. Where the evident purpose of an act is to substitute a new section for the old one the rule is if the new section is unconstitutional, the repealing clause is likewise invalid and the old section remains in force.
Where a statute authorized any person having filed a mechanics' lien in the clerk's office to assign the same, an act which was an attempt in its title to limit its operation to liens against railroads and the body of the act attempted to repeal the former statute and allowed any person having the right to a lien to assign the same, prior to the giving of notice and the filing of a lien, in an action to enforce such lien by an assignee, a demurrer to the plaintiff's petition was properly sustained.
Appeal from Greene Circuit Court. — Hon. Guy D. Kirby, Judge.
AFFIRMED.
F.W. Barrett for appellant.
(1) When a statute is held unconstitutional. The unconstitutionality of a statute must appear beyond a reasonable doubt before it is so held by the courts. Star Square Auto Supply Co. v. Gerk, 30 S.W.2d 447; State ex rel. v. Terte, 23 S.W.2d 120. Every reasonable intendment should be made to sustain a legislative enactment. State v. Ward, 40 S.W.2d 1074. An act will be so construed if possible, as to avoid conflict with the Constitution. Sunderland, sec. 83, p. 133. Acquiescence in the validity of a statute for many years will give weight, if there is room for doubt. 1 Sunderland, p. 134; Nitzmann v. So. Ry. Co., 131 Mo. 612. (2) Section 3235, Revised Statutes 1929, is not in conflict with or in violation of Section 28 of Article 4 of the Constitution of the State of Missouri, by reason of its title when enacted in 1909, being insufficient to cover the act. The title to a bill need not refer literally to all details suggested by the general subject. State v. Ward, 40 S.W.2d 1074. Where a revision places an act or section under the wrong heading of the statute, the act is not affected thereby. Henning v. Stald, 138 Mo. 430; State v. Kellmann, 123 S.W.2d 70. A title reciting that it is an act to amend a specified section of a prior statute, any legislation is proper which is germane to that section. Mayes v. United Garment Workers of America, 6 S.W.2d 333, 320 Mo. 10. On several amendments of an act, if the title to the original act is sufficient to embrace the matter contained in the amendatory act the sufficiency of the title of the latter act need not be inquired into. 59 C.J. 818; State ex rel. v. Hackmann, 267 S.W. 608, 305 Mo. 685; St. Louis v. Tifel, 42 Mo. 590; State ex rel. Attorney General v. Ransom, 73 Mo. 78. If the title to the bill is general any legislation within or relating to that title is valid. Star Square Auto Supply Co. v. Gerk, 30 S.W.2d 447; Brown v. States, 323 Mo. 141, 19 S.W.2d 14. (3) The title to an act means that designation prefixed to an act by the Legislature which defines the character of the legislation and does not include attempted additional indicia added or the chapter or section heading. State v. Thomas, 256 S.W. 1028; 59 C.J., p. 799, sec. 376. (4) Object of the constitutional requirement of Section 28, Article 4. This court has repeatedly said that the principal purpose of this provision was to prevent surprise or fraud upon members of the Legislature by barring insertion in the body of the bill of something of which the title gave no intimation. Asel v. City of Jefferson, 287 Mo. 195; Young v. Greene County, 342 Mo. 1110.
Robert D. Durst and J. Weston Miller for respondents.
(1) Railroads have always been considered as a separate and distinct subject and class for legislative purposes. Williams v. A., T. S.F. Ry. Co., 233 Mo. 678; Powell v. Sherwood, 162 Mo. 605. (2) Section 28, Article IV of the Constitution of Missouri is clear and unambiguous and provides: "No bill shall contain more than one subject, which shall be clearly expressed in its title." Section 3225, Revised Statutes 1929, contravenes the above mandatory provision of the Constitution of the State of Missouri, if applied to any other liens than those against railroads, in that the title to the act passing what is now the above section is restricted to legislation concerning railroads and not only does not encompass lien law as applied to anything else, but in fact would be directly and positively misleading as to the applicability of any act passed under such title with reference to anything except railroads. Sherrill v. Brantley, 66 S.W.2d 529. (3) The prefix, caption or other indicia as to the character of an act made in the office of the Secretary of State in compiling the publication of an act is no part thereof; nor does the place an act is put in the revised statutes affect its validity or change its applicability unless the entire act is reenacted by the Legislature itself as so revised. Appellant's brief sets out the same point here advanced and we therefore will not burden the court with any lengthy citations or quotations therefrom in connection herewith. Wilhite v. Rathburn, 61 S.W.2d 710; State v. Mauer, 255 Mo. 160. Where the headings to a chapter of the statutes, which are passed as one act, and form a part thereof as so passed by the Legislature, then they do have meaning and are inserted for the purpose of controlling and limiting the scope of the various articles of the chapter. People of the State of New York v. Molineux, 53 Barbour, 16; State ex rel. v. Hackman, 267 S.W. 611. (4) In the absence of a valid statute so permitting, the assignee of a mechanic's lien and materialman's lien cannot file and enforce a mechanic's lien thereon. Ittner v. Hughes, 154 Mo. 55; Little Rock Trust Co. v. So. Mo. A. Ry. Co., 195 Mo. 669.
Appeal from the Circuit Court of Greene County. Plaintiff, as assignee of the claims of numerous persons for labor in the erection of a building, sued to enforce a mechanic's lien. The defendants filed a demurrer and the court sustained it on the ground that Section 3225, Revised Statutes 1929 (Mo. Stat. Ann., sec. 3225, p. 5033), violates Section 28 of Article IV of the Missouri Constitution, as applied to the right of an assignee to sue on such claims as plaintiff asserts. Plaintiff appealed.
Section 28. Article IV, of our Constitution, reads:
"No bill . . . shall contain more than one subject, which shall be clearly expressed in its title."
Section 3225, supra, was enacted in 1909 (Session Acts of 1909, page 661), as House Bill No. 382, which reads as follows:
"An Act to amend Article IV of Chapter 47 of Revised Statutes of Missouri of 1899, entitled `Liens of contractors, materialmen and laborers against railroads,' by repealing Section 4256, and enacting a new section in lieu thereof, as follows: . . .
" Be it enacted by the General Assembly of the State of Missouri, as follows:
"Section 1. Assigning and enforcing liens. — That section 4256 of article four of chapter 47 of the Revised Statutes of Missouri of 1899 be and the same is hereby repealed and the following new section enacted in lieu thereof, to-wit: Section 4256. Any person or persons having claims for which they are entitled to liens under this chapter, may assign to any other person or persons all their right, title and interest in and to such claims, and the assignee thereof may file a lien or liens therefor, as provided in this chapter, and may bring suit in his own name, and include in such suit all claims assigned to him, and enforce such assigned lien or liens as fully as if such claims had been filed by the original claimant.
"Approved April 29, 1909."
We agree with appellant that it is our duty to so construe the Act, if possible, as to avoid conflict with the Constitution; and that we should not hold the Act invalid unless its unconstitutionality appears beyond a reasonable doubt. We also agree that if the title, though general, clearly expresses the purpose of the Act any legislation reasonably within the title is valid.
However, if the title is restrictive, the Act must also be restrictive and cannot include anything beyond the restrictive wording of the title. [Hunt v. Armour Co., 345 Mo. 677, 136 S.W.2d 312; Sherrill v. Brantley, 334 Mo. 497, 66 S.W.2d 529.]
The purpose of the constitutional provision above quoted is to prevent surprise or fraud upon the legislators by barring from the body of a bill everything not indicated by the title. [Williams v. Railroad, 233 Mo. 666, 136 S.W. 304.]
It requires no elaborate argument to convince us that a member of the General Assembly, looking to the title of House Bill No. 382, would conclude that the Bill pertained to liens against railroads only, and not to liens generally. If the title had merely referred to the numbers of the article, chapter and section, we would have a different problem; but inclusion of the words, "liens of contractors, materialmen and laborers against railroads," indicates a restrictive intent. Appellant says: that the language just quoted is not the real title to the original Act sought to be amended by House Bill 382; that the title to the original Act referred to liens generally. But "the title to the original Act" for the purpose now being considered is the title as it appears in the revision of 1899 and as quoted in the title of House Bill 382. The legislators, to determine the purpose of the legislation, were not required to look beyond the title as it appeared in the Bill. [State ex rel. v. Hackmann, 305 Mo. 685, 267 S.W. 608, l.c. 611; State ex rel. v. Ranson, 73 Mo. 78.] As that title referred to liens against railroads only and the body of the Act referred to liens generally, we are compelled to hold that the Act of 1909 conflicts with the constitutional provision above quoted.
The evident purpose in the enactment of House Bill 382 was to substitute a new section for the old one. We cannot say that the legislators intended to repeal the old section without enacting a new one in its place. In such circumstances, the rule is that, if the new section is unconstitutional, the repealing clause is likewise invalid and the old section remains in force. [State ex inf. v. Cameron, 342 Mo. 830, l.c. 839, 117 S.W.2d 1078; State ex inf. v. Joyce, 307 Mo. 49, 269 S.W. 623; State v. Thomas, 138 Mo. 95, 39 S.W. 481.]
The question then arises: does the old section authorize plaintiff (appellant) to sue as assignee of the claims described in his petition?
The old section (Sec. 4256, R.S. 1899), reads as follows:
"Any two or more persons having filed in the clerk's office mechanic's liens may assign to each other or to any other person all their right, title and interest in and to such mechanic's liens, and the assignee thereof may bring suit in his name and enforce all of such assigned liens as fully as if the same had not been assigned."
Thus it will be seen that one essential difference between the two sections is: that under the old one the assignment could be made only after the lien had been filed, while under the attempted substitute the right to a lien could be assigned prior to the perfection of a lien.
Both the old section and the attempted substitute imply that such a lien cannot be assigned in the absence of statutory authority, and such seems to be the effect of previous decisions of this court. [Little Rock Trust Co. v. Ry. Co., 195 Mo. 669, l.c. 692, 93 S.W. 944; Ittner v. Hughes, 154 Mo. 55, 55 S.W. 267; Ittner v. Hughes, 133 Mo. 679, 34 S.W. 1110.]
In the instant case the petition, in each count, states that the "claim and right of lien" was assigned to plaintiff "prior to the giving of notice and the filing of the lien herein." As the existing law does not authorize an assignment until after the lien is perfected, the demurrer to plaintiff's petition was properly sustained.
The judgment is affirmed. All concur.