State ex rel. Harris v. Laughlin

Hougii, J.

At the March term, 1882, of the St. Louis; criminal court, the grand jury returned an indictment' against Robert C. Pate and others therein named, charging-them with feloniously setting up and keeping a certain gambling device, adapted, devised, and designed for the-purpose of playing a certain game of chance, commonly called keno, for money; and with feloniously inducing,, enticing and permitting certain other persons by means of said gambling device to bet and play at said game of keno-for money. The defendants in said indictment filed a plea. to the jurisdiction of the criminal court, alleging that the-act of March 9th, 1881, making gambling of certain kinds - a felony, under and by virtue of which act the grand jury found and filed said indictment, was unconstitutional and* void, because the title of said act does not meet the requirements of section 28, article 4, of the constitution, and for-other reasons which it is unnecessary to notice ; that the offense charged was, therefore, a misdemeanor only, and. not a felony, and said court had no jurisdiction thereof.. After hearing said plea, and on the 1st day of May, 1882,. the criminal court made the following order: “ This day ' the court sustains the plea and, the amended plea to the-jurisdiction in each and all of the above cases, and it appearing to the court that the offenses charged in said indictments are misdemeanors, and the St. Louis court of criminal correction having exclusive jurisdiction of such cases,., it is ordered that each and all of said indictments be certified and transmitted to-th.e said St. Louis court of criminal *366 correction for trial.” On the following da,y the circuit attorney for the city of St. Louis made application to the St. Louis criminal court to vacate and set aside the foregoing order and to proceed with the trial of said indictment, which said court refused to do, and he now makes application to this court for a writ of mandamus to compel- the judge of said court to proceed with the trial of the indictments aforesaid.

i. mandamus t o jurisdiction. The writ of mandamus is one mode of exercising the superintending control over inferior courts conferred upon this court by the constitution. It is well set-tied, too, that this writ can be resorted to in criminal cases as well as civil. Bishop's Crim. Proc., § 1402, and cases cited. In neither class of cases, however, can this writ be made to perform the functions of a writ of error or an appeal. When addressed to subordinate judicial tribunals, it simply requires them to proceed to exercise their judicial functions. State ex rel. Adamson v. Lafayette Co. Ct., 41 Mo. 224; State ex rel. Metcalf v. Garesche, 65 Mo. 489; State ex rel. Watkins v. Macon Co. Ct., 68 Mo. 48; Bishop's Crim. Proc., § 1403, and cases cited. Of course this court would not compel an inferior court to proceed to try a case of which it had no jurisdiction, and where an inferior court refuses to proceed and finally dispose'of .a case on the ground of an alleged want of jurisdiction, on application made to this court to compel such inferior court to hear the same, it will be the duty of this court to determine whether such inferior court has jurisdiction of the cause, and such determination will be binding upon the inferior court. This is established by all the authorities.

The peculiar character of the order made by the criminal court in sustaining the plea to its jurisdiction relieves us of the necessity of examining and deciding many points which were presented in the oral argument, and are to be found in the briefs of counsel, based upon the supposition that the indictment pending in the criminal court had been *367 finally disposed of. By reference to. tbe order of the court, however, it will be observed that the indictment has not been quashed, nor adjudged defective or insufficient; neither has the prosecution been dismissed, nor have the defendants been discharged. The true and only legal construction which can be given to the order made by the criminal court, is, that the court has stricken the case from the docket and refuses to proceed with the trial, although the indictment is still pending in that court; for the order to transfer the indictments to the court of criminal correction is wholly without warrant of law and utterly void. The criminal court could not divest itself of jurisdiction by any such order, and the indictment is still pending in that court notwithstanding that order. The simple fact that the plea to the jurisdiction is sustained does not finally dispose of the case; and if the criminal court has jurisdiction of the offense charged we will compel the judge thereof to proceed with the cause, although he may be- of opinion that his court has no jurisdiction and so alleges in his return. We are all of opinion that this is a proper case in which to issue the writ of mandamus, provided the criminal court has jurisdiction of the offense charged. Whether it has jurisdiction depends upon whether the offense charged is a felony, and whether said offense is a feloiiy depends upon the constitutionality of the act of March 9th, 1881, above referred to.

All the objections to the validity of this law, save the one relating to the title of the act, are satisfactorily disposed of in the opinion of the judge of the criminal court, and it will be unnecessary, therefore, for us to say anything in regard to them. We will proceed to the title of the act.

2. constitutional law • title ol act: gambling. Section 28 of article 4 of the constitution declares that: “ No bill * * shall contain more than one subject, which shall be clearly expressed . . . ■„ \ , m its title. lhe title of'the act of March 9th, 1881, is as follows: “An act to amend section 1547 *368 of article 8 of the Revised Statutes, relating to offenses-against public morals and decency, or the public police, and miscellaneous offenses.” The sections of the Revised Statutes, without regard to subject matter, are, in pursuance of law, numbered successively and without omission from the beginning to the end of the volumes. Article 8 of the chapter on crimes and punishments, in the Revised Statutes of 1835, is entitled, “ Of offenses against public morals and decency, or the public police, and other miscellaneous offenses,” and embraces the same class of offenses now grouped under precisely the same title in article 8 of' the chapter on crimes and punishments in the Revised Statutes of 1879. Article 8 of the chapter on crimes and punishments in the Revised Statutes of 1845 has precisely the same title and embraces the same class of offenses. So. in the Revised Statutes of 1855 the same title embraces the same class of offenses, and in the Revised Statutes of 1865,. as also in Wagner’s Statutes of 1872, the same title is employed to designate the same class of offenses. This title, therefore, is no new combination of indefinite terms, but from long usage, has come to have as definite a signification as the title “ Of "the assessment and collection of the-revenue,” or any other title which has been continuously used for one and the same purpose from the beginning of' the State government. This court has repeatedly held that the provision of the constitution now under consideration should be liberally construed. In the City of Hannibal v. The County of Marion, 69 Mo. 571, speaking of this, provision we said: “Its object, as has been repeatedly observed, was manifestly to prevent and prohibit fraudulent legislation, or, in other words, the enactment of provisions to which no attention was given by reason of their not being in reference to the subject indicated by the title. It was not the purpose, however, to require that the title of an act should refer literally to all the details which the general subject would suggest.” Now the title of the act in question not only refers to the title of the article but to- *369 the particular section of that article sought to be amended; this constitutes the subject of the bill, and it is clearly expressed. The subject matter or contents of the section sought to be amended need not be stated in the .title.

An additional reason for a liberal construction of this section of the constitution is, that in the next preceding section, (§ 27, art. 4,) it is provided that no bill can be passed by the legislature until it has been reported upon by a committee and printed for the use of the members. Similar titles have been upheld in other states having constitutional provisions like our own. The constitution of Kansas provides that “No bill shall contain more than one-subject which shall be clearly expressed in -its title.” An act was passed in that state entitled “An act to amend sections 2, 4, 17, 41 and 59 of an act entitled,” etc. Speaking-of this act the supreme court of Kansas in The State v. Bankers' Association, 23 Kas. 501, said: “A certain subject, is expressed in the title, i. e., the amendment of five specific sections. So far as the act follows the title, it is without question; hut it goes beyond, and after doing all that its title intimates that it will do, it reaches out for something entirely separate and independent.” And in People ex rel. Comstock v. Judge of Superior Court, 39 Mich. 195, a statute similarly entitled, though criticised, was held to be valid; vide also County Commissioners of Dorchester Co. v. Meekins, 50 Md. 28.

The authorities, however, in our own State are conclusive upon this question. In the State v. Hanson, 73 Mo. 78, the constitutionality of an act having a title similar to that now under consideration, was upheld by this court. The discussion of the sufficiency of the title in that case was general, and there is nothing in the opinion to indicate a purpose on the part of this court to confine the ruling there made to acts passed at a revising session of the legislature for the purposes of revision. The case was not considered by this court in that aspect-. That case, too, although not citing the case of the City of Kansas v. *370 Payne, 71 Mo. 159, is in entire harmony with it. The title of the act passed upon in the latter case is as follows: “An act to amend sections 2, 3, 4, 5, 9, 11, 14, 17 and 18 of an act approved April 12th, 1877, entitled ‘An act to provide for the collection of delinquent taxes due the State, and repealing section 184 of an act entitled an act concerning the assessment and collection of the revenue, approved March 30th, 1872.’ ” The sections amended relate to various matters, but they all appropriately fall under the general title. This title was held to be good in itself, but was declared to be insufficient to embrace a repeal of certain provisions of the charter of the City of Kansas, as it contained “ no index to the legislative intent ” to interfere with the city charter. The designation by number of the sections proposed to be amended was held to be sufficient, although the substance or purport of such sections was not set forth.

Reing of opinion that the title of the act of March 9th, 1881, is sufficient, and the act, therefore, constitutional, and that the offense charged in the indictment herein referred to is a felony, a peremptory writ will be awarded.

The other judges concur.