Obrázky stránek

State ex inf. v. Morgan.

"A further objection to the statute is, that it contravenes section one of article fourteen of the Constitution of the United States, which declares that no State shall 'deny to any person within its jurisdiction the equal protection of the law.' Our statute, which allows the State fifteen peremptory challenges in capital cases in cities having over one hundred thousand inhabitants, whilst elsewhere the State is allowed only eight peremptory challenges, was assailed in Hayes v. Missouri, 120 U. S. 68, as being in conflict with the above prohibitions upon state legislation. The Supreme Court of the United States then said: This amendment 'does not prohibit legislation which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and the liabilities imposed.' And again it was said in Missouri v. Lewis, 101 U. S. 1. c. 30, speaking of the same constitutional provision: 'It contemplates persons and classes of persons. It has not respect for local and municipal regulations that do not. injuriously affect or discriminate between persons or classes of persons within the place or municipalities for which such regulations are made.'

"The law in question applies alike to all persons within the territory or locality where it is adopted. There is no discrimination whatever in favor of or against persons or classes of persons within such territory. They are all treated alike. It is true the penalties for violating this law are not the same as those for violating the dram-shop law. They are, indeed, not the same offenses. In the one case the offense is the violation of a law which allows and regulates traffic in intoxicating liquors as a beverage, and in the other case the offense is for selling such liquors where

Donovan v. Gibbs.

the sale of it is prohibited by law. But aside from this the law makes no discrimination as to persons in the territory where it takes effect, and that is enough to show that it in no way contravenes the section of the Constitution of the United States before quoted."

We do not deem it necessary to consider the constitutionality of the above act further. In no uncertain language, the following recent cases have upheld the validity of the proceeding thereunder, to-wit: State of Missouri ex inf. Simrall ex rel. Clements et al. v. Clardy, 267 Mo. 371; State of Missouri ex rel. Hilbert v. Glaves, 268 Mo. 100; State ex rel. v. Gordon, 261 Mo. 631.

It has been the policy of this court, in construing the statutes relating to schools and school districts, to give them a liberal construction, and to uphold the same whenever it can be done without violating the plain provision of the law.

Having decided the constitutional question adversely to relator, and no error having been found in the record proper, the judgment of the trial court is affirmed. Brown, C., concurs.

PER CURIAM.-The foregoing opinion of RAILEY, C., is adopted as the opinion of the court. All the judges concur; Bond, J., in result.


Division One, June 2, 1916.

1. ATTACHMENT: Against Nonresident: Dissolution Upon Answer. Section 2298, Revised Statutes 1909, authorizing attachments against non-residents without bond, but declaring that "when any writ of attachment has issued against a nonresident and the plaintiff has given no bond, the attachment



Donovan v. Gibbs.

shall be dissolved as of course upon the defendant entering his appearance and filing his answer to the merits of the case," does not mean that the filing of an answer to the merits, without anything more, without even an application to or any action whatever by the court, of itself alone dissolves the injunction.


Meaning of "Of Course." The words "of course" used in said statute and similar statutes mean any action or step taken in the course of judicial proceedings which will be allowed by the court upon mere application without inquiry or contest, but they imply some action by the court, upon motion or other request.


: Answer Filed After Submission of Cause. After the non-resident defendant in the attachment, appearing solely to question the jurisdiction, had filed a motion, an alias summons was served on the defendant, who was temporarily in the county, and the cause was continue to be heard at the next term. At that term, and on November 29th, he fled a general denial by way of answer, no ruling having been made or asked on his plea to the jurisdiction, and no leave to file his answer having been given or asked. Judgment was rendered on November 30th, and the record of that day recites: "Now on this day this cause coming on to be heard, the judge of this court having previously heard the evidence of witnesses and the argument of counsel, and having taken the case under advisement, finds," etc., Held, that it must be presumed that the trial court acted in accordance with the law; and as the record recites that the cause was taken under advisement some time prior to the rendition of judgment, it wil be presumed, in aid of the judgment, in the absence of a recital of the precise date on which it was taken under advisement, that it was under adviserent when the answer was filed on November 29th, and hence the filing of the answer without leave and without setting aside the prior submission could not re:.der applicable the proviso of Sec. 2298, R. S. 1909, even though it could be held to mean that a filing of an answer to the merits in an attachment against a non-resident in which no bond has been given of itself alone dissolves the attachment.

[ocr errors]

Appeal from Dent Circuit Court.-Hon. L. B. Woodside, Judge.


Donovan v. Gibbs.

G. C. Dalton for appellant.

(1) Under Sec. 2298, R. S. 1909, just as soon as the defendant entered his voluntary appearance and filed his answer to the merits, the writ of attachment was ipso facto dissolved; the declaration of law requested by the plaintiff should have been given by the court. It defines the phrase "as of course" and gives it almost the same meaning as the phrase "ipso facto." The definition of this phrase is the pivotal question in the case at bar. "The phrase 'of course' is defined as follows: That which may be done in the course of legal proceedings without making an application to the court."Bouvier's Law Dictionary. See, Stoddard v. Treadwell, 29 Cal. 281. The meaning of the statute is clear. It is expressly stated in this statute that if plaintiff, without giving bond, brings his action, in attachment, against a non-resident defendant, entering his appearance and filing his answer, such attachment shall be dissolved. (2) The great fundamental rule in construing statutes is to ascertain and give effect to the intention of the Legislature. This intention must be the intention expressed in the statute. 36 Cyc. 1106 (2), 1107; Thornley v. United States, 113 U. S. 310; Gist v. Construction Co., 224 Mo. 369; Diedrick v. Rose, 228 Ill. 610. (3) A plaintiff could not sue a non-resident in attachment, without giving bond, under Sec. 370, R. S. 1899. This section was so amended by Laws of 1907, p. 69, as to enable plaintiff to sue a non-resident, in attachment, without bond; and this proviso was added by this amendment. This provision is the last expression of the legislative will. It is a well settled principle of law that the last expression of the legislative will is the law. In case of conflicting provisions in the same statute, the last enacted prevails. 36 Cyc. 1130, 1151. A proviso is a clause engrafted on a preceding enactment for the purpose of restraining or modifying the enacting clause, or of excepting something from its

Donovan v. Gibbs.

operation which otherwise would have been within it. 36 Cyc. 1162; Wayman v. Southard, 10 Wheat. (U. S.) 130; Patterson v. Winn, 24 U. S. 380; DeGraff v. Went, 164 Ill. 485; State ex rel. v. St. Louis, 174 Mo. 125.

W. P. Elmer for respondent.

(1) The term "as of course" means as a matter of right, which needs no investigation by the court as to the truth of it. 6 Words and Phrases, p. 4914. (2) Sec. 2302, R. S. 1909, provides that in certain cases the court may order the attachment plaintiff to execute a new attachment bond. Section 2303 provides that if the plaintiff fails to comply with the order, the suit shall be dismissed at his cost. In construing these two sections, this court held that a proper notice and motion and order were necessary to dismiss the suit. Jasper County v. Chenault, 38 Mo. 357; Englehart Co. v. Burrell, 66 Mo. App. 117; State ex rel. v. McKeon, 25 Mo. App. 667. (3) Section 2341 provides how attachments shall be dissolved. This section was not amended in 1907 to show the legislative intent of the amendment to section 2298, but the method of the dissolution as pointed out in section 2341 was applicable to attachments without bond, as provided in section 2298 where the State or the county was a party. An order of court is necessary to dissolve an attachment for the causes enumerated in section 2341 and when the defendant complies with the requirements of section 2341 the attachment should be dissolved as a matter of course. The only difference between the requirements of section 2341 and section 2298 would be the sufficiency of the affidavit and bond, which are to be approved by the court, and when they are approved the defendant has as much right to have the attachment dissolved as the defendant under section 2298 without bond would have had on entering his ap

« PředchozíPokračovat »