State ex rel. Circuit Attorney v. Macklin

41 Mo. App. 335

• Court: Missouri Court of Appeals
• Decided: May 13, 1890
• Status: Published

Opinions

OPINION ON DEMURRER TO INFORMATION.

Rombauer, P. J.

Under the stipulation filed March 27, 1890, the only question submitted for our decision oh this demurrer is, whether the fifth section of an act entitled “ An act fixing the number of directors in public school boards in certain cities, and providing for election of such directors, and for districting said cities therefor,” approved March 30, 1887, is constitutionally valid.

On the question, whether the whole act is constitutionally valid, as impairing the restrictions imposed upon the legislature in the passage of local acts, or whether said act is to be considered a local or general law, we have heretofore refrained from expressing an opinion, and we desire to be understood as not now passing on that question one way or the other.

The section under consideration is as follows: “Sec. 5. No person shall be eligible for office of director of school board in any such city who shall not have resided in such city and paid a school tax therein for two consecutive years ■ immediately preceding his election, and each director shall also possess such additional qualifications as may be required by existing law or charter.”

The constitutional validity of this section is challenged on the ground, that it is touching a subject not clearly expressed in the title of the act, as required by section 28 of the fourth article of the constitution of Missouri, which section,, omitting exceptions foreign to this inquiry, is as follows : “No bill shall contain more than one subject, which shall be clearly expressed in its title.”

The true scope and meaning of this section has been very fully discussed in City of St. Louis v. Tiefel, 42 Mo. 578, which case has ever since been a leading case on that subject. There the title of the act was “ An act to amend an act to enable the city of St. Louis to procure a supply of wholesome water,” approved March 13, 1867. The second section of the amendatory act provided for a water rate payable by all owners and lessees, whether they used the water of the city or not, provided they were notified of the readiness of the water board to supply them with water, and provided the board of health by resolution declared that the use of water from the public water works of the city, in such houses, was demanded as a sanitary measure. The section further subjected the persons who failed so to use the water to the same penalties as those who used the water and failed to pay for the same. The provision was not contained in the original act. Objection was made that the power thus conferred was extraordinary, was not germane to the main subject, and that the provisions contained in the section were in nowise referred to in the title of the act. The supreme court held the section constitutionally valid, and in so doing Judge Wagnee in delivering the opinion said: “In the act to which the section under consideration is amendatory, the title is, ‘ To enable the city of St. Louis to procure a supply of wholesome water.’ To accomplish that object it was necessary to act through agents, and hence a board of water commissioners was constituted; and, as a consequence, their powers, duties and responsibilities were defined. That the board of health should say when in their judgment it was necessary as a sanitary measure that certain houses should be supplied with water, does not alter the case. They take no steps toward carrying out the act, nor do they exert any active agency in the matter. When their views are made known, the board of water commissioners then act, if they see proper. The section, although it confers extraordinary powers, relates clearly to the subject intimated in the title, and is entirely congruous and connected with it. Every person, upon an inspection of the title, would naturally expect to find the full scope of the powers, duties and privileges of the commissioners set forth in the act.”

We are referred by respondents to State v. Everage, 33 La. Ann. 120; State v. Demouchet, 40 La. Ann. 205, and Brown v. State, 79 Ga. 324, as supporting a contrary view. If they do, they are entitled to no consideration when opposed to the decisions of our own supreme court.

The views expressed in City of St. Louis v. Tiefel were approved in State v. Mathews, 44 Mo. 523; State v. Bank, 45 Mo. 536, and State v. Mead, 71 Mo. 266. In the last case cited the supreme court held that, “ If any matter contained in a statute be objected to, as not referred to in the title, or that the bill contains more than one subject, the objection urged will not be held well taken, if the clause or section to which objection is' raised be germane to the subject treated of in the title.” It was there held that a section providing for filling, by appointment of the governor, vacancies temporarily occurring in offices filled by election in the first instance was germane to the subject of an act and sufficiently expressed in its title, which was, “Concerning popular elections.”

It is needless to elaborate this subject further. It is evident from the above authorities that, in this state, provisions prescribing the qualifications of directors, are germane to the general subject of an act which provides for their election, and it must also be conceded that an act, which, according to its title, provides for the election of certain officers, sufficiently indicates by its title that their qualifications are provided for in it. The respondents’ demurrer is overruled. All concur.