State ex rel. Henderson v. County Court

Adams, Judge,

delivered the opinion of the court.

I. The first question presented by this record is the constitutionality of the act of the Legislature establishing a Probate Court for Boone county. It is urged that the Legislature is prohibited, from passing such an act by.the provisions of section 27 of article XV of the constitution of this State. The section referred to, after enumerating many cases where the Legislature is positively-prohibited from passing a special law, contains this clause : “ The-general assembly shall pass no special law for any case for which, provision can be made by a general law, but shall pass general laws providing, so far as it may deem necessary, for the cases, enumerated in this section and for all other cases where a general law can be made applicable.” The new constitution containing-this section took effect the fourth day of July, 1865. Since that time the Legislature, by special acts, has created in various parts *321 of the State many Probate and Common Pleas Courts. These courts have been in full operation for many years, and have transacted a great deal of business, and are still transacting business. Large investments have been made, and titles to property acquired and transferred, on the faith that these courts were legally established, and that their acts and proceedings were valid. If they have no legal existence, all their acts and proceedings are coram non judice and absolutely void. A tribunal for the transaction of judicial business can only be created by the supreme power of the State. No person on his own motion has the power to erect himself into a court. He may without any authority assume the office of judge of a court which has a legal existence, and preside as such, and all the acts of a court presided over by him will be valid. But where there is no law authorizing such court to be held, and the judge assumes to create a court and preside over it, the tribunal so created and all its proceedings are absolutely void. Can the office of judge of a court be assumed where there is no such office and no such court in existence ? Such a proposition seems to me to be wholly untenable.

Can there be such a thing as a de facto court where there is a rightful government ? If the government itself is a usurpation, as long as such government lasts the courts established by it are defacto courts, because the only existing government is de facto ; and when the rightful government is restored, the acts of such courts, as a matter of necessity, must be held to be valid. That is not the case in a rightful government. The authority to establish the court must emanate from the supreme power, otherwise the court itself is an absolute nullity and all its proceedings utterly void. In the State of Maine a probate judge assumed to hold a court at a place where he was not authorized by law to hold this court, and even in such case the Supreme Court of that State held the acts of the court a nullity. (See 27 Me. 114.)

These observations belong to the cause, and are not made because I consider the act of the Legislature irreconcilable with the constitution, but to indicate the deep magnitude to the people, as well as to individuals, of the question presented by this record. In Illinois the Supreme Court of the State refrained from looking *322 into the constitutionality of certain acts of a local character on account of the long-continued practice of the Legislature and the far-spread ruin it would produce to declare them void. (See Johnson v. Joliet & Chicago R.R. Co., 23 Ill. 202.) We are not without authority in support of the constitutionality of this law. So far as legislative action can give sanction to such a law, it has received it from the uniform practice of the Legislature ever since the constitution was Named. It has also received the sanction of this court in the many cases which have been brought here Nom those courts by appeal and writ of error, in which solemn judgments have been pronounced without objection, and which would be void if the court of original jurisdiction had no legal existence. In the case of The State v. Ebert, 40 Mo. 186, this court sustained the act creating the St. Louis Court of Criminal Correction and providing for the trials of misdemeanors by information, on the ground that it was necessary in a large city like St. Louis. So in the case of The State ex rel. Dome v. Wilcox, 45 Mo. 458, the same question was raised and decided in the same way in regard to the statute authorizing cities, towns and villages to 'organize for school purposes. How was it any more necessary in these cases to resort to special laws than in the cases of Common Pleas Courts and Probate Courts ? Either class of enactments might be supplied by general laws, but the special laws are deemed much better, and therefore are considered necessary. Who is to decide when such necessity arises ? The word “ necessary” admits of all degrees of comparison. But a special law is scarcely absolutely necessary in any case, as in almost every case the particular end in view might be attained by a general law. The Supreme Court of Indiana, in the case of Thomas v. Board of Commissioners, 5 Ind. 4, stood upon the superlative degree and required the strictest construction of a similar clause in the constitution of that State, and said that in no case could a special law be resorted to where a general law would cover the case. I cannot see the force of the reasoning of the Indiana court in this case, and indeed the authority of the case is very much shaken, if not entirely set aside, in a subsequent case, where an act creating a new judicial circuit was upheld. (See Stocking *323 v. The State, 7 Inch 328.) It will be observed that the Indiana constitution, like onr own, inhibited certain local and special acts of legislation, and then in a subsequent section (§23, art. iv) it was provided that all laws should be general whenever a general law could be made applicable. In speaking of the law creating the judicial circuit, the court said : “ This does not seem to us to be such a case, and even if we doubted we should be bound to throw the benefit of our doubt in favor of the constitutionality of the law.”

If the court had been governed by the reasoning in the fifth volume, this law would have been set aside as unconstitutional, because there is no doubt the new circuit could have been provided for by framing a general law. Afterwards, in 1868, the Supreme Court of Indiana, in an able opinion delivered by Elliott, Judge, reviews the case in 5 Ind. and expressly overrules it. But who is to decide when a general or a special law will answer the best purpose ? It strikes me that this rule, in reference to general or special laws, is laid down as'a guide for the Legislature, and the Legislature is to judge of the necessity of the particular case. The Legislature is quite as able to do this as the courts. The Legislature must, in the first instance, exercise their discretion as to the necessity of a special instead of a general act. How can the courts control that discretion ? If a discretion be conceded at all, in my judgment the courts have no right to control it.

It is agreed that there is no discretion in regard to the passage of certain enumerated laws. They are inhibited by the letter of the constitution. When the Legislature undertakes to pass these inhibited laws, it is the plain duty of the courts to declare them unconstitutional. But here we are asked to pronounce upon the necessity of a law, and whether it can be better supplied .by a general law than a special act. This is the exercise of the discretion of the court to control the discretion of the Legislature. I am not satisfied that this can be done. In The State v. Hitchcock, 1 Kan. 178, it was held that their constitutional provision, that “in all cases where a general law can be made applicable, no special law shall be enacted,” left a discretion with the Legislature to determine the cases in which special laws *324 should be passed, and this discretion could not be interfered with by the courts. This doctrine, it seems to me, is supported by reason and the weight of authority.

But there is another clause in our constitution which may be invoked to uphold the authority of the Legislature to pass this law. By section 1 of article VI it is provided that “ the judicial power as to matters of law and equity shall be vested in a Supreme Court, in District Courts, in Circuit Courts, and in such other inferior tribunals as the general assembly may from time to time establish.” Here the authority is expressly given without limitation to establish inferior tribunals “from, time to time.” It is not intended that they should all be established át one session or by one act, but “Horn time to time,” as they may be needed. Some counties may need a Common Pleas Court, a separate Probate Court, or a Criminal Court, while others are too sparsely settled to need'them. Who is to judge of the* time when the exigency arises ? Is not this discretion expressly left to the general assembly by this clause of the constitution ? • How can the courts undertake to control this discretion ? Whatever may be said in reference to other special laws, the power is necessarily implied, if not expressly given, by this clause of the constitution, to establish inferior tribunals by special acts. I feel satisfied that the act under consideration is not unconstitutional.

2. The next question is, was there such a vacancy in the office of judge of this court as to authorize the governor to exercise his power of appointment? The act vests the exclusive jurisdiction of probate matters in this court, and it took effect the first day of June, 1872, but postpones the election of a judge until the general election in November. Who is to transact probate business in the meantime, unless a judge be appointed to fill the vacancy? The language of the constitution is, “ when any office shall become vacant,” etc., the governor may fill the vacancy. This is a new office created by this act, and ipso facto becomes vacant in its creation.

An existing office without an incumbent is vacant within the meaning of the constitution, and can be filled by the governor by *325 appointment, unless an election or some other mode is plainly indicated. (See Stocking v. The State, 7 Ind. 326.)

In my opinion a judgment of ouster must be entered against the • defendants.