State Ex Inf. Atty. Gen. v. Hedrick , 294 Mo. 21 ( 1922 )

The regulation of the warehousing and inspection of grain was first established by the Act of June 22, 1889. [Laws 1889, p. 124 et seq.] The title to this first enactment was:

"An Act to increase the duties of the Board of Railroad Commissioners, changing the name of said board, providing for the organization of public warehouses, and to regulate the warehousing and inspection of grain in public warehouses in the State of Missouri."

By this act the name of the then "Board of Railroad Commissioners" was changed to the "Board of Railroad and Warehouse Commissioners," and the board was charged with the duties of warehouse regulation and grain inspection. The second section of the Act of 1889 required the board toTitle of appoint a "chief grain inspector" whose term of officeAct. was fixed at two years and whose duty it was to have general supervision of the inspection of grain. He was empowered to nominate, for appointment by the Commission, a sufficient number of suitable persons for positions as deputy chief inspectors, and as assistant inspectors. Section 40 of the act provided for the removal of any such appointees for stated causes.

In the features mentioned, in so far as questions here are concerned, the Act of 1889 was carried forward, with the addition of hay inspection, in substantially the same form until the passage of the Act of 1913. By that act, Article 2 of Chapter 60 of the Revised Statutes of 1909, relating to the inspection of grain and hay, was repealed, and a new article enacted in lieu thereof. The title of the Act of 1913 (Laws 1913, p. 354) is as follows:

"An Act to repeal Article 2 of Chapter 60 of the Revised Statutes, 1909, relating to inspection of grain and hay, and to enact in lieu thereof a new article, to be known as Article 2, relating to inspection and weighing of grain, abolishing the office of Railroad and Warehouse Commissioners, creating the office of Warehouse Commissioner and fixing his powers and duties, with an emergency clause."

By Section 2 of the Act of 1913 (Sec. 5993, R.S. 1919) "the office of Railroad and Warehouse Commissioner" was abolished and the office of "Warehouse Commissioner" established. Section 3 of the act (R.S. 1919, sec. 5994) provides for the appointment and tenure of the Warehouse Commissioner and for filling vacancies. Section 4 of the act (Sec. 5995) provides for the removal of such official for stated causes and prescribes the procedure therefor.

In the new act and old, mutatis mutandis, the provisions concerning the appointment and removal of chief inspector and assistant inspectors are alike.

Among other things, relator earnestly contends that the provisions purporting to empower the Governor to remove the Warehouse Commissioner for stated causes are invalid because they are not within the subject clearly expressed in the title.

Are the provisions for removal invalid when tested by the requirements of Section 28 of Article IV of the Constitution? The quotation of some additional statements of the general rules applicable to the determination of this question, though they have been often repeated, does not seem out of place. This court early approved the doctrine that "the unity of object is to be looked for in the ultimate end designed to be attained, not in the details leading to that end," and that "there must be but one subject; but the mode in which the subject is treated and the reasons which influenced the Legislature cannot and need not be stated in the title, according to the letter and spirit of the Constitution." [City of St. Louis v. Tiefel, 42 Mo. l.c. 591.] In that case the reasons which prompted the adoption of the constitutional provision in question were learnedly discussed, and the court, at page 590, summed up the matter thus:

"But while the clause was embodied in the organic law for the protection of the State and the Legislature, it was not designed to be unnecessarily restrictive in its operation, nor to embarrass legislation by compelling a needless multiplication of separate bills. It was only the intention to prevent the conjoining in the same act of incongruous matters and of subjects having no legitimate connection or relation to each other."

The title considered there was: "An Act to enable the City of St. Louis to procure a supply of wholesome water." This title covered the creation of a board of water commissioners and, "as a consequence," a definition of its powers, duties and responsibilities, and certain penalties for failure to take out license to use and pay for water after the board had announced its readiness to furnish it. The court held the penalties within the title. In State v. Mathews, 44 Mo. 523, the title was, "An Act to create an insurance department." The act empowered the Superintendent of Insurance to require certain information from the companies. It was held that the doctrine of the Tiefel Case, that matters necessary to make the act effectual were within the title, was sound. A Michigan decision was approved (l.c. 527) in which it was held that under the title, "An Act to establish a police government for the City of Detroit," all "matters properly connected with the establishment and efficiency of such a government, including taxation for its support, and courts for the examination and trial of offenders, might constitutionally be included in the bill under this general title." In State v. Miller, 45 Mo. l.c. 499, the court warned against "too vigorous and technical a construction" and declared that if "we should follow the rules of a nice and fastidious verbal criticism, we should often frustrate the action of the Legislature without fulfilling the intention of the framers of the Constitution." In State v. Bank, 45 Mo. l.c. 537, the same rule was applied. "The constitutional provision simply requires that the title shall give information of the general subject of the act, and that the act shall not contain provisions in no wise pertaining to that general subject." [In re Burris, 66 Mo. l.c. 446.] "It was not the purpose" of the Constitution, "however, to require that the title of an act should refer literally to all the details which the general subject would suggest." [City of Hannibal v. County of Marion, 69 Mo. l.c. 575; Frost v. Wilson, 70 Mo. 664; Luther v. Saylor, 8 Mo. App. l.c. 430.] In Coca Cola Bottling Co. v. Mosby, 289 Mo. l.c. 472, 233 S.W. l.c. 448, this court ruled:

"The State Constitution (Sec. 28, art. 4) is read to little purpose if it be held to require that the title of an act must present the particularity of an itemized account or the minutiae of a chemical analysis. When the Constitution provides, therefore, that no bill shall contain more than one subject, which shall be clearly expressed in its title, it simply means that the title shall indicate in an unmistakable manner the general contents of the act; it does not require nor was it intended that it should descend into particulars, but that it will be sufficient if it defines the nature of the statute and thus informs the reader as to its purpose. The nature of this constitutional provision being thus understood, the tendency of the courts in numerous rulings has been to construe it liberally in aid of all well directed legislative power."

With respect to formulated rules for determining whether a statutory provision is germane to the general subject expressed in the title, this court has frequently approved that laid down by Sedgwick on Statutory Construction, p. 521n: "When all the provisions of a statute fairly relate to the same subject, have a natural connection with it, are the incidents or means of accomplishing it, then the subject is single; and if it is sufficiently expressed in the title, the statute is valid." [Ewing v. Hoblitzelle, 85 Mo. l.c. 71; State ex rel. v. Miller, 100 Mo. l.c. 445, and cases cited; Elting v. Hickman, 172 Mo. l.c. 252.] It has also approved the rule formulated on this subject by Mr. Bishop (Statutory Crimes) as follows: "The title need indicate the subject only in a general way, without entering into details; and all auxiliary provisions properly attaching to it, and constituting with it one whole, may be embraced within the enactment." [State v. Bockstruck, 136 Mo. l.c. 353.]

It is also the law of this State that the principle that an act will not be held to be unconstitutional unless it appears to be so beyond a reasonable doubt, applies to questions concerning the sufficiency of titles of acts. [Forgrave v. Buchanan County, 282 Mo. l.c. 604, 605; Ex parte Loving, 178 Mo. l.c. 203, et seq.]

Is a provision for removal of the Warehouse Commissioner germane to the subject expressed in the title of the Act of 1913? The purpose to establish the office of Warehouse Commissioner is expressly stated in the title. Relator and respondent in this case both claim title to the office under appointment by the Governor under the power given him by the act in question. They both thereby affirm that the act validly establishes the office and authorizes the Governor to appoint and, by necessary implication, that the title is sufficient to cover and authorize the enactment of the provisions relating to these two things. For the purposes of this case it seems safe to assume that relator will not deny the soundness of this conclusion. Since the title authorized the enactment of a provision for appointment by the Governor, it included such enactment as a part of the subject it clearly expressed. Now, it appears, practically to the point of demonstration, that when the Legislature has proceeded to the point that it has determined to create an office and provide for the appointment of an officer, the question of the power to remove becomes not merely germane to the subject, but obtrudes itself as an essential component of the situation.

If the simple power to appoint is conferred and no term is fixed by law and nothing else appears, then the appointee may be removed at pleasure, by the appointing authority, without notice, the preferment of charges or the assignment of reasons. [Throop on Public Officers, sec. 354; Mechem's Public Officers, sec. 445.] The reason of the rule is found in the unreason of its alternative, which, as Mr. Mechem says, would be that the tenure of such appointee then would be "subject to no will but his own;" i.e. he would, in such case, hold at his own pleasure, a predicament in which courts have refused to place the public. This is the law in this State. In State ex rel. Campbell v. Police Commissioners, 14 Mo. App. l.c. 302, it was said: "It is not disputed that the power of removal at pleasure is incidental to the power of appointing, in the absence of any inconsistent limitation in the law which creates the authority to appoint." This decision was fully approved by this court on appeal. [88 Mo. l.c. 145.] In another particular this case was disapproved in State ex rel. v. Johnson, 123 Mo. l.c. 51, but the language above set out was approvingly quoted and the rule it states was applied as decisive of the case then under consideration. The same rule was followed in State ex rel. v. Alt, 26 Mo. App. l.c. 676. In this case a formulation of the rule by THAYER, J., then on the circuit bench, was approved. Other decisions are in point. [State ex rel. v. Brown, 37 Mo. App. l.c. 204; Horstman v. Adamson, 101 Mo. App. l.c. 124, 125, and cases cited; State ex inf. v. Crandall, 269 Mo. l.c. 51.] A like principle is approved in State ex rel. v. Stonestreet, 99 Mo. l.c. 377; State ex rel. v. Hawes, 177 Mo. l.c. 378. The rule is said to be "universal" in 29 Cyc. pp. 1370, 1371, 1408; and "general" in 22 R.C.L. secs. 266, 267, pp. 562, 563; and "uniform" in note to Wright v. Gamble, 136 Ga. 376, in Ann. Cases, 1912C, p. 374, et seq. Numerous authorities are cited in this note — State, Federal and English. Others may be found in note to Trainor v. Board (Mich.) 15 L.R.A. 95. It is suggested in 22 R.C.L. sec. 266, p. 562, that this rule "does not appear to apply to governors of states." An examination of the cases cited in this connection shows that the suggestion really depends upon Dubuc v. Voss, 19 La. Ann. 210. What was said in that case which was thought to be upon the present question isobiter, if so construed, as well as opposed to all other decisions, as is pointed out in note in 15 L.R.A., to which reference has been made.

It thus appears that when the Legislature provides for the appointment of one official by another, if it does nothing more, adopts no means to forestall it, the act authorizing the appointment will inevitably raise the power to remove at pleasure. This power is none the less a part of the act, and none the less within the title because it arises by construction. It is clear that if it is not germane it could not arise out of the power to appoint, because the constitutional provision in that case would invalidate it. It is also clear that the rule itself could not exist except the power arose out of the simple conferring of the power to appoint, since express language authorizing removal at pleasure would leave no reason or ground for implying the power.

This power may be defeated by specific provisions which destroy it or by the fixing of a tenure, which is inconsistent with it. Now, the relator will concede that no right to remove at will exists in this act. It is true the title does not specifically mention a fixed tenure or removal for cause; but if relator is correct in his contention that the removal-for-cause feature is invalid, then the provisions fixing the tenure at four years and that for the consent of the Senate to the appointment are the only remaining provisions which could restrict removal at pleasure. It is, therefore, reasonable to think that relator will not deny that these provisions are germane to the subject expressed in the title. He could not long remain in court upon any other theory, in so far as concerns this present question. But the very fixing of tenure is legislation upon the power of removal. It destroys the power which would otherwise exist to remove at pleasure; for such power is necessarily incompatible with a definite tenure. The same thing has been held to be implied from the provision respecting the consent of the Senate.

It, therefore, appears that this title not only does, but must, if relator is not removable at pleasure, cover and authorize express legislation upon the removal of the Warehouse Commissioner; and that in the absence of provisions which exscind the power to remove at pleasure, that power inevitably becomes a part of the act. The Legislature not only could, under the title, lawfully legislate upon the power of removal, but in establishing an office and providing for the appointment of an officer it could not, under the rule in this State and country, by any possibility avoid including in the act authority for removal of one kind or another or a denial of such authority. The power of removal is, therefore, not merely germane to the subject expressed in the title — it is an inseparable part of it. Since the subject of removal is germane and within the title, the means and manner and any valid procedure therefor, under authorities cited, are also within the title. It is argued the title "descends to particulars" in such way as to exclude everything except (1) the creation of the office, (2) the fixing of power, and (3) of duties. If this argument is to aid relator he must maintain that this descent into particulars also renders invalid the fixing of the tenure of the office and the requirement as to the consent of the Senate, since these, in themselves, constitute legislation against removal at pleasure. They prevent it. The result of this has already been pointed out. It would put an end to relator's claim. The particulars mentioned do not expressly include a power to appoint. If relator's position on the point is sound, then the Governor's constitutional power to appoint would still leave in force the rule as to removal at pleasure, which has been discussed. It is also suggested that "an expression of intention to create is not a clear expression of an intent to destroy." The provisions for removal in no way destroy or diminish the office the act creates. They affect solely the tenure of the incumbent of the office.

The Act of 1913 is, in a sense, amendatory, and decisions upon questions involving titles of amendatory acts might have some pertinence. Their effect, if any, would be to confirm the result already reached, as an examination of them will show.

The decision in Bell v. District Court, 28 Nev. 280, l.c. 297, 298, upon which relator relies, involved provisions for the removal of an officer elected by the people. There is no incidental power to remove such an officer, and this renders that decision inapplicable to the question here. The reasons already given seem to permit of but one conclusion. The provisions empowering the Governor to remove for causes stated are not rendered invalid by Section 28 of Article IV.

II. Earnestly and ably counsel for relator press the argument that the section providing that the Warehouse Commissioner may be removed from office for stated causes is special and, therefore, void in that it is arbitrarily made to apply to but aSpecial part of a class which the reason underlying the sectionLaw. includes.

1. The subject of Article 2 of the chapter on inspections is the inspection of grain. The subject of the Act of 1913 is the establishment of the office of Warehouse Commissioner and the fixing of his powers and duties. As already shown, the title includes the subject of the tenure and removal of the Commissioner. It has been pointed out that in establishing a statutory office and providing for appointment thereto, the Legislature not only can but must deal with the matter of removal. If it is true that provisions for removal must be the same in all statutory offices of State-wide jurisdiction, as is contended, then the tenure of all must be the same, since to fix tenure is to legislate against the removal at will. If this be true, then the provision for an initiatory term of six years in the Act of 1913 was bad, in any event. And would it not be true, under relator's argument, that the fixing of tenure in separate acts would be special and void even though all other inspection acts separately fixed the tenure of the inspectors thereunder? Is the question whether the act assailed includes the whole class, or is it whether that act and other acts, considered together, include it? If the tenure clause is bad because enacted in an act covering the Warehouse Commissioner alone, then the implication against removal by the Governor at pleasure arising out of the requirement that the appointment must be made by and with the consent of the Senate, is bad for the same reason. If these are void and the removal section also void, there remains no obstacle to removal at pleasure by the appointing power. This, if sound, would dispose of relator's claim without further ado. In this connection it is to be kept in mind that the question is not whether relator is denied the equal protection of the laws, but is whether the act is special in the sense of Section 53. It may be so in that sense though every other member of the class to which it applies is subject to like provisions in other special laws. There is no exception to the prohibition that a special law cannot be passed if a general law can be made applicable. It does not except from its condemnation special laws in case other like special laws have been passed respecting all other members of the class. It seems to be true that the argument of relator against the specific removal clause is equally good against all other restrictions upon removal which the act contains, and that removal at pleasure would be left to work its will. Since he must affirm the effectiveness of some restriction upon removal, must he not concede the validity of all?

2. Relator's position necessarily must be that the reason for legislation respecting the creation of the office, the appointment thereto and the tenure of office, is sufficient to justify the enactment of those provisions though they are applicable to the Warehouse Commissioner alone, but that this reason is not of a character to justify the enactment of separate procedure for the removal of the Warehouse Commissioner. At first blush it would seem that the matter of appointment and tenure and removal and filling vacancies all pertained to the subject of providing a satisfactory incumbent for the office and were incidents, merely, with respect to which the validity of the provisions concerning them might all be upheld for the same reasons. If this is true, then the removal feature is as valid as that providing for the appointment and as that fixing the tenure. There is authority that when the principal provisions of an enactment are based upon sound classification, incidental provisions are justified by that fact and are not to be held void because they, incidents only, cannot be shown to rest upon distinctions adequate to sustain them if they stood alone and independent of the rest of the act of which they form a part. In State ex rel. v. Thurman, 268 Mo. l.c. 543, this court had under consideration the question whether legislation applicable solely to the contest of elections under the Local Option Law was special and, therefore, void. It was there held that since the Local Option Law was good against the objection that it was special, the contest provision, added by amendment in 1909, since it was germane to the subject-matter of the act, was "no more special than the rest of the act."

In Gray v. McLendon, 134 Ga. 224, the court had under consideration the question whether an act providing for the suspension and removal of a railroad commissioner was invalid because special. The applicable constitutional provision was not the same as ours, but the question made was like that in the instant case. The court said: "There is no merit in this contention. The Act of 1879 was in no sense a special law. A statute relating to persons or things as a class is a general law." [Authorities are quoted.] "The Act of 1879 provides for the suspension and removal of all railroad commissioners in the State, and is in no sense a special law. To hold legislation of this kind void as a special law would establish a principle which, when applied to all acts of the Legislature, would paralyze the legislative branch of the government."

In Fitzgerald v. New Brunswick, 47 N.J.L. 480, there was involved the constitutionality of a resolution of the common council, of date July 6, 1885, which declared vacant the offices of chief of police and patrolmen in defendant city. It appeared that an act, effective May 25, 1885, restrictive of the power of city councils, had been passed to substitute removal for cause for removal by the council at pleasure. The manner of preferring charges and the course of the hearings were prescribed. It was held that it was applicable to all cities. It was argued that there existed municipalities other than cities but similarly situated with respect to the need for police and the organization and regulation of their police force. The court held that despite this it was settled law that the boroughs mentioned constituted a class for legislative purposes distinct from cities, and held the removal law valid as against the objection that it applied solely to cities and did not apply to boroughs. It is obvious that this decision is not founded upon any difference between the cities and boroughs respecting their police forces which would authorize the classification made. There was no such difference. It is based upon the fact that the cities constituted a class for general municipal purposes separate from that of the boroughs. The gist of the decision is that the fact that the cities did constitute such a separate class made the police-removal law, applicable solely to cities, a general law despite the fact that in another class of municipalities, the boroughs, the same situation with respect to the police existed.

3. It is also held in several decisions that if the Legislature is empowered to create an office, it may provide for removal from that office as it wills. "In creating an office the government can impose such limitations and conditions with respect to its duration and termination as may be deemed best, and in such case the incumbent takes the office subject to the conditions which accompany it." [In re Carter, 141 Cal. l.c. 320; State v. Houston, 94 Neb. l.c. 453.] Even in case a "constitution creates an office but makes no provision for the period of its term or method of removal from it, the power of the Legislature to act in the public interest in these respects is well settled. [Op. of Justices, 117 Mass. 603; Wales v. Belcker, 3 Pick. 508.]" — Opinion of Justices, 216 Mass. l.c. 606.

In case the Legislature is invested with "power to provide the mode of filling, fix the term and prescribe the duties of such officers, it necessarily follows it may, in its discretion, not only discontinue them altogether, but determine the manner and by what tribunal an incumbent may be removed." [Hoke v. Richie, 18 Ky. L. Rep. l.c. 524.] With respect to the office of police commissioner of Denver it was held in Trimble v. People, 19 Colo. l.c. 196, that the Legislature had the power to create the office, provide the method of filling it and the manner of removal from it. In Attorney General v. Tufts, 131 N.E. l.c. 575, the court reaffirmed the doctrine announced in Opinion of Justices, 216 Mass. 605, 606, and quoted with approval from Graham v. Roberts, 200 Mass. 152, 157: "Where an office is created by law, and one not contemplated, nor its tenure declared by the Constitution, but created by law solely for the public benefit, it may be regulated, limited, enlarged or terminated by law, as the public exigency or policy may require." The court also said: "Even where the Constitution creates an office but makes no provision for its term or the method of removal of its incumbent, the General Court may act in these particulars in the public interest. It may establish any rational means of removal from such office for any just cause." In Caldwell v. Wilson, 121 N.C. l.c. 470, it was held that the Legislature in creating the office of railroad commissioner had authority to reserve to itself the power to remove, and to the Governor the power to suspend such official.

4. The same result is reached when the general principles concerning classification are applied to this case.

Special legislation is forbidden, but legislation is not special because it does not apply to all persons and objects in the State. In the nature of things there are classes of persons and objects to which legislation may be applied which, with equal certainty, cannot be made applicable to persons and objects not in such classes. The Constitution may (within the limits of the Federal Constitution) create or authorize the creation of classes for the purposes of legislation. [Art. IX.] In a very real sense the Legislature cannot do this. Under our Constitution, in so far as the question in this case is concerned, the Legislature must find in existing circumstances and conditions distinctions pertaining to some of the persons or objects within the State which do not pertain to the rest and which thus delimit a class. Such distinctions must not be arbitrary nor unrelated to the purposes of the contemplated legislation. They must be germane to the reason for the enactment which is to be applied to the class marked out by them. "It is settled law that a classification for legislative purposes `must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis' . . . and also that the distinction observed in marking the boundaries of the class to which the resulting enactment shall apply must be one which `is not arbitrary, but rests upon some reason of public policy growing out of the condition of the business of such class' . . .; it `must be grounded upon a reason of a public nature' and `must be of such a nature as to mark the objects thus designated as peculiarly requiring exclusive legislation' and `as well, in some reasonable degree, at least, account for or justify the restriction of legislation.'" [State ex rel. v. Railroad, 246 Mo. l.c. 514, 515; State v. Julow, 129 Mo. l.c. 177; State v. Miksicek, 225 Mo. l.c. 574 et seq.; State ex rel. v. Kimmel, 256 Mo. l.c. 640 et seq.; State ex rel. v. Revelle, 257 Mo. l.c. 540, 541.]

It is sometimes said that the distinctive features which mark out a class as the proper subject of legislation applying to it alone must be such as to give rise to a "necessity" for distinctive legislation, or "require" such legislation. [State ex rel. v. Miller, 100 Mo. l.c. 448.] The words thus used must not be misunderstood to establish a rule that though a class be set off by conditions peculiar to it alone and germane to lawful purposes of legislation, yet laws respecting such classes cannot be enacted validly unless there be an actual necessity that they be passed or that their passage is absolutely required by existing conditions. Whenever a distinction exists which defines a class and separates it from the whole, the necessity or need or requirement for a law affecting the class alone need be no more compelling than it would have to be to justify a law affecting the whole if the distinctive feature which marks out the class was not distinctive, in that sense, but was a quality of every person and object which makes up the whole. This is recognized, impliedly, in the quotation found at page 499 in the case last cited and, in fact, must be true, so far as concerns this case, unless the courts are to be made the judges of the need for legislation and its propriety as well as its validity — a position not yet taken.

Early in the history of the consideration of the question whether an act was to be held invalid as special legislation and in conflict with Section 53 of Article IV of the Constitution, this court announced that such "question should be approached with great caution and should be considered with the utmost care and deliberation. The nullity and invalidity of such a law must appear beyond a reasonable doubt before we can assume to pronounce it void. The rule is founded on the fact that the judiciary ought to accord to the Legislature as much purity of purpose as it claims for itself; as honest a desire to obey the Constitution, and, also, a high capacity to judge of its meaning." [Ewing v. Hoblitzelle, 85 Mo. l.c. 70; State ex rel. v. Wofford, 121 Mo. l.c. 68; State ex inf. v. Southern, 265 Mo. l.c. 284; Ex parte Loving, 178 Mo. l.c. 203; Commissioner ex rel. v. Smith, 4 Binn. 117; Byrne v. Stewart. 3 Desauss. l.c. 476-477; Ogden v. Saunders, 12 Wheat. 213; Dartmouth College Case, 4 Wheat. 518.] This court long ago approved the doctrine that the validity of a legislative classification does not depend upon numbers. [State ex rel. v. Tolle, 71 Mo. l.c. 650.] If all the members of a class with respect to which separate legislation is permissible are included, that is sufficient whether the members of the class are many or few. [State ex rel. v. Gordon, 245 Mo. l.c. 31, et seq.; State ex inf. v. Southern, supra; Elting v. Hickman, 172 Mo. l.c. 257.]

A general law may include all persons. Such inclusion is justified when the situation or condition of all is alike with respect to the feature which calls the law into being. But a law is not necessarily special because it does not include all persons. It is not necessary that it shall include a majority. No court has attempted to fix a per cent of the population, or objects or places within a state, below which a legislature may not go in respect to the number of persons, objects or places in a class to which a general law is made applicable. Number is not the test. The basis of sound legislative classification is similarity of situation or condition with respect to the feature which renders the law appropriate and applicable. A law may not include less than all who are similarly situated. If it does, it is special and, therefore, invalid, because it omits a part of those which in the nature of things the reason of the law includes. The question is not whether, considering all the circumstances which exist, the Legislature might not constitutionally make a law which would include a larger class. On the contrary, it is whether it appears beyond a reasonable doubt that there are no distinctive circumstances appertaining to the class with respect to which it has legislated which reasonably justify its action in restricting the operation of the law to the persons, objects or places to which the law is made applicable. To illustrate, concede the Legislature might pass an act providing procedure for the removal of all statutory officers of state-wide jurisdiction; but this does not necessarily preclude it from providing such procedure applicable to a part only of such officers, if with respect to that part there is some difference, in the condition or situation, of such character as reasonably to distingush them from the rest with respect to the matter of the regulation of removal from office. [State ex rel. v. Gordon, 245 Mo. l.c. 33.]

"Legislative classification does not have to be so broad and comprehensive as to include all the evils which might by possibility be brought within its terms. Classification must be accommodated to the problems of legislation, and must be palpably arbitrary to authorize a judicial review of it. It cannot be disturbed by courts, unless they can see clearly that there is no fair reason for the law that would not require with equal force its extension to others, whom it leaves untouched. It is competent for a legislature to determine upon what differences a distinction may be made, for the purpose of statutory classification, between objects otherwise having resemblance, though such power cannot be arbitrarily exercised, and the distinction must have a reasonable basis." [Stewart v. Brady, 133 N.E. l.c. 314.] In that case is quoted, with approval, from International Harvester Co. v. Missouri, 234 U.S. 199, language to the effect that on a question like this the court is inquiring concerning the power of the legislature, and not investigating the wisdom of legislative policy. With respect to the rules governing judicial inquiry into legislative power, the court, in Stewart v. Brady, expresses itself as follows:

"So in Chicago, Burlington Quincy Railway Co. v. McGuire,219 U.S. 549, 31 Sup. Ct. 259, 55 L. Ed. 328, it is said:

"`The scope of judicial inquiry in deciding the question of power is not to be confused with the scope of legislative considerations in dealing with the matter of policy. Whether the enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired result, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner, are matters for the judgment of the Legislature, and the earnest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance.'

"The contention as to the various omissions which are noted in the objections here urged ignores the well-established principle that the Legislature is not bound, in order to support the constitutional validity of its regulation, to extend it to all cases which it might possibly reach. Dealing with practical exigencies, the Legislature may be guided by experience. [Patsone v. Pennsylvania, 232 U.S. 138-144.] It is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed to be clearest. As has been said, it may `proceed cautiously, step by step,' and `if an evil is specially experienced in a particular branch of business,' it is not necessary that the prohibition `should be couched in all-embracing terms.' [Carroll v. Greenwich Ins. Co.,199 U.S. 401-411.] If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied. Keokee Consol. Coke Co. v. Taylor, 234 U.S. 224-227.' [Miller v. Wilson,236 U.S. 373, 35 Sup. Ct. 342, 59 L. Ed. 628, L.R.A. 1915F, 829.]

"One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. A distinction in legislation is not arbitrary, if any state of facts reasonably can be conceived that would sustain it, and the existence of that state of facts at the time the law was enacted must be assumed. [Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 Sup. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160.]"

In the matter of classification for the purposes of legislation, the Legislature has a broad discretion and that discretion cannot be revised by the courts merely because it may be thought it has been unwisely exercised. It is only when it appears beyond a reasonable doubt that the classification is arbitrary and that there is no peculiarity in the condition of the members of the constituted class which justifies their segregation for legislative purposes that courts can interfere. [State ex rel. v. Railroad, 246 Mo. l.c. 514.] The question must be approached, as we must conclusively presume the Legislature approached it, i.e., with the mind fixed upon the public good to be attained by creating the office, and not upon the benefits which might accrue to an incumbent from his incumbency.

It is suggested that the section in question has been repealed, that it can, therefore, never be applicable to any one save relator, and for that reason is shown to be special. Every law is subject to repeal. That is a thing inherent in statutes. Upon the question whether it is general or special, a law is to be viewed as of the time it is formulated and passed. It is suggested by respondent that the act is justified because numerous acts of the kind have been passed. The Legislature has no power to amend a provision of the Constitution by the device of frequently violating it. Legislative and departmental construction may aid in resolving ambiguities, but cannot estop courts to apply the law when its meaning is established.

The real argument is that there are other inspection laws in which the chief inspecting officers are in like situation with the Warehouse Commissioner in so far as concerns the matter of removal from office, and that, therefore, they, with him, constitute a class which is indivisible for the purpose of providing methods of removal, and that since Section 5995 applies to the Warehouse Commissioner alone it is special and therefore void under Section 53 of Article IV. An answer to this requires an examination of the general features of the Grain Inspection Act with respect to the business it affects, the purposes it seeks to accomplish, the duties of the Commissioner, and the need, if any, for provisions for removal of the Commissioner for the causes stated; and, in addition, a comparison of this act with others mentioned.

There are differences between the Grain Inspection Act and other inspection acts which may have something to do with this question. There is one which arises out of the character of public warehouses. Generally, inspection may be required when it is reasonably necessary to secure or protect the public health, safety, morals or welfare. [Coca Cola Bottling Works v. Mosby,289 Mo. 462; Foster v. Masters and Wardens, 94 U.S. l.c. 248, and cases cited; 14 R.C.L. sec. 12, p. 694.] The business of public warehouses differs from those affected by other inspection acts in that it is clothed with a public interest and is subject to regulation, and in this State regulated (Sec. 6018, R.S. 1919) in the matter of charges which may be exacted for services rendered. [Munn v. Illinois, 94 U.S. 113.] There are also differences between the character of the evils intended to be prevented by grain inspection and those at which other inspection acts strike. Out of these arise marked differences between the duties of the Warehouse Commissioner and his aids and those of other inspectors, such as inspectors of oils, beverages, etc., There is also a difference in the places of inspection and the degree of watchfulness necessary to render the act effective. The Warehouse Commissioner must have (or acquire) for a proper discharge of his duties, expert knowledge of grades and grading of grain. He establishes grades. Upon these grades depend numerous important requirements of the act. He formulates rules for inspection and for fixing inspection charges. He must see that the grades are not mixed in storing and must keep fully informed as to the grain stored and the daily movements of grain. He is required to examine into the conditions and management of public warehouses, so far as these pertain to the public interest and to the security and convenience of persons doing business with such institutions; see that the persons in charge comply with the laws, and prosecute violations thereof. For these purposes he is required personally to visit the public warehouses periodically and inquire into their management. The books of warehouse companies are made open to him and he is given power to examine warehouse officials respecting conditions and management; for this purpose he may subpoena witnesses, and administer oaths; and if his subpoena is disobeyed, the circuit court is required to compel such witness to appear and testify. His consent is required before published warehouse rates can be increased. There are other like duties.

It is quite obvious that inefficiency, neglect of duty or misconduct in office on the part of the Commissioner will have immediate and serious effects. It is also to be remembered that the Commissioner has exclusive supervision of the weighing of grain handled in public warehouses, and that his department has in charge the vital things which concern the marketing of the chief agricultural products of this State and section. It is obvious that inefficiency, neglect of duty or misconduct in office on the part of the Warehouse Commissioner would require some remedy. His inefficiency or neglect of duty or misconduct easily might destroy confidence in the grading and weighing of grains and in the security against dishonesty in public warehouses and quickly affect adversely our great markets for the products of so great concern to the public. The chief purpose of the act would thus be defeated. To fail to provide some means designed to protect against such result would have been a clear omission of duty. An examination of other inspection acts, of beverages, oils, etc., for instance, discloses that they differ materially from the Grain Inspection Act with respect to the exigency which would arise if the head of either of them should prove inefficient or neglectful or be guilty of misconduct in office. Those acts are chiefly concerned with the ascertainment of the physical contents and qualities and chemical structure of the products inspected, and prescribe with particularity the tests and methods to be applied. Much less is intrusted to the judgment of the chiefs of inspection and much less required of them personally. There is no such great concentration of material for inspection and no great probability of such immediate and serious injury to the public good, should they nod, as in the case of the Warehouse Commissioner who sits in control over the great markets of this section. These differences directly relate to the need for the lodgment of a power promptly to remove the Commissioner in case he becomes inefficient or neglectful or should be guilty of misconduct in office. In the face of these differences, though the rule that there is a presumption that the Legislature based its classification upon sufficient evidence (State v. Tower, 185 Mo. l.c. 95) be waived, it cannot be said that it appears beyond a reasonable doubt that there is no distinction in the situation in question which justifies separate legislation respecting the removal of the Warehouse Commissioner. Whether the legislation enacted is the wisest that could have been formulated is not the question. The conclusive thing is that the differences which appear have a reasonable relation to the matter of removal and afford a basis for legislation upon that subject. The legislative power is founded upon this. The wisdom of its exercise is another matter and not open to examination in this proceeding.

III. It is insisted the provision concerning removal in invalid because, it is argued, it "attempts to invest the executive department with judicial authority." The Constitution (Art. III) establishes three departments of government and makes them independent of each other. [Rhodes v. Bell, 230 Mo. l.c. 149, 153.] This court and most others are committed to theJudicial doctrine that the Legislature may confer upon anPower. executive officer or board the power to remove an official upon charges preferred, a notice given and after a hearing pursuant thereto, without thereby authorizing such officer or board to exercise judicial power in the sense in which the Constitution prohibits the exercise of such power by any other than the officials of the judicial department. To the Missouri and other cases cited in the opinion of HIGBEE, J., might be added many others. The decision in Dullman v. Willson, 53 Mich. 392, relied upon by relator, is explained in respect to the instant question in Fuller v. Attorney General, 98 Mich. l.c. 105. "The better authority" is said in State ex rel. v. Council, 90 Wis. l.c. 619, to approve the rule heretofore adopted by this court. Such is the doctrine now "generally held." [State ex rel. Shaw v. Frazier, 39 N.D. 430.] Decisions are collected and New Jersey decisions reviewed in McCrau v. Gaul, 112 Atl. l.c. 342 et seq.; Ibid, 112 A. 606; Breeheen v. Riley,200 P. 1042; Duffy v. Cooke, 239 Pa. St. l.c. 447, 448. The resemblance the required proceedings may bear to court procedure does not affect the question. An office is not property in the ordinary sense. The conditions upon which a statutory office may be retained can be prescribed by the Legislature. The act of removal is not made judicial because proceedings for removal are ordained which include some or all of the features of a trial. They are still mere conditions imposed upon the exercise of an executive or administrative power. But two states recognize property in an office in a sense resembling that contended for here. Even in those states the equilibrium of the doctrine is not very stable. Old cases so holding are based upon English decisions in which, usually, the right to office was a hereditament or, sometimes, in which it was held in freehold. The courts of this country, as a rule, do not admit the applicability of such decisions to questions concerning office under a government like ours.

IV. The only other point relator raises in his "Statement, Brief and Argument" is that "the so-called hearing before the Governor was so conducted by him as to constitute a denial to relator of the rights secured to him by Section 30Due Process. of Article II of the Constitution of Missouri, and the attempted removal of relator from the office of Warehouse Commissioner was void for that reason."

The section of the Constitution thus invoked provides that "no person shall be deprived of life, liberty or property without due process of law." It is not denied that the Governor formulated and served upon relator written charges and gave him due notice of the time and place of hearing, nor that relator appeared at the time and place and offered evidence and personally testified in the proceedings. No point was made before the Governor, so far as relator's "Statement, Brief and Argument" shows, concerning the legal sufficiency of the charges preferred, nor is any such matter pleaded in relator's return. Nor does he in his "Statement, Brief and Argument" make any such point in this court. He founds his argument on this branch of the case upon these: (1) that the Governor offered no evidence; (2) that he had prejudged the matter; (3) that after hearing evidence offered by relator from ten a.m. until two a.m. of the following day, the Governor broke off the hearing, though relator announced he could procure other witnesses whom he desired to bring before him; (4) that the relator was kept in ignorance of the evidence against him. Relator contends the record shows these things and that these show he was denied a hearing to which, as defined by him, he contends he was entitled.

The provisions of Section 5995, Revised Statutes 1919, respecting the Governor's power to remove the Commissioner, and his duties in that connection are as follows:

"The Governor may remove the Commissioner for inefficiency, neglect of duty or misconduct in office, giving him a copy of the charges against him and an opportunity of being publicly heard in person or by counsel, in his own defense, upon not less than ten days' notice. If such Commissioner shall be removed, the Governor shall file in the office of the Secretary of State a complete statement of all charges made against such Commissioner, and his findings thereon, together with a complete record of the proceedings."

The section further provides that:

"The Legislature also shall have the power, by a two-thirds vote of all members elected to each house, after ten days' notice in writing of the charges and a public hearing, to remove the Commissioner from office for dereliction of duty, or corruption, or incompetency."

Cases like State ex rel. v. Stone, 120 Mo. 428, and State ex rel. v. Shields, 272 Mo. 342, and the like are not applicable. The question whether the courts can compel a governor to perform a particular act, or whether they will entertain an action against him as an individual for damages for his failure to perform a duty enjoined upon him as Governor, are entirely different from that here which concerns the power of courts, in a contest between third persons, to inquire into the validity of an act of the Governor upon which rights of such third persons depend. Neither do they affect the question of the extent of court review of the Governor's proceedings in removing an officer when drawn in question in a case like this.

Since the pleadings fail to challenge the legal sufficiency of the charges made by the Governor, and since relator did not in his "Statement, Brief and Argument" assign this as a matter upon which he relied, the question is not presented in this case. The reason for relator's course in this respect is not material, but is apparent. This mention is elicited by a remark in a reply brief.

The formulation and due service of the charges and, besides, the appearance of relator at the appointed place and time gave jurisdiction to proceed. Due process did not require a trial in a judicial sense. The Legislature might have left the Governor free to remove at pleasure. Instead, it prescribed certain lawful conditions upon which the power to remove could be exercised. Due process in the matter of removal required no more than the statute required. Substantial compliance with the essence of the statute constitutes due process in a removal proceeding. The prejudice which is charged against the Governor could not warrant the court in holding he was without jurisdiction to sit. That a governor is a human being was a fact known to the Legislature when this act was passed, and that, despite his high office, a governor is more or less subject to the infirmities of human nature could not have been unknown to it. That it was anticipated he might not proceed when there might be reason to do so is proved by the alternative provision for removal by the Legislature. In these circumstances, the act might have provided other procedure for removal in case it was shown the Governor was prejudiced and not to be trusted to deal fairly. No such provisions were enacted. No "change of venue" was allowed. The lawmaking power entrusted the matter of removal to the Governor without regard to any question concerning his state of mind or attitude toward an official coming within the act. Doubtless that body thought public sentiment a sufficient deterrent. Whatever it thought and whether its course was wise or otherwise, the act enables the Governor to proceed in any case within it. A particular state of mind which might be his in a particular case was not thought by the Legislature to be reason for refusing to invest him with the power to remove, and this court cannot amend the statute.

Since provision for removal was deemed necessary and since the power to remove must be lodged somewhere, the Legislature chose the Governor and reposed the power in him without any qualification or restriction in so far as concerns the feelings he might entertain toward any officer with respect to whom he might undertake to exert his power to remove. It follows that it is wholly needless to go into a discussion of the question whether the record shows the Governor had improperly formed an opinion adverse to relator in advance of the hearing he tendered him.

The failure of the Governor first to offer evidence is not of great consequence in the circumstances shown by this record. It is not necessary to decide whether the provision of the statute that relator might be "heard in person or by counsel in his own defense" means the same thing as the subsequent provision with respect to the legislative hearing which gives the Commissioner the right to "a public hearing." Let it be assumed relator was entitled to a hearing in the sense that he was entitled to have evidence supporting the charges offered before he would be put upon his defense. As pointed out by HIGBEE, J., he did, in fact, proceed with evidence, the taking of which consumed sixteen hours, as the stipulation shows. So far as concerns the simple question whether the mere showing that no evidence was offered by the Governor invalidates the whole proceeding, it must be said that this objection would not be good even were this case here on appeal. The record, including the additional abstract, shows that the heads of inspection in several important places were called by relator and testified, but does not set out their testimony. The Chief Clerk was a witness. He testified he kept the books relating to "the fund known as the Private Inspection and Weighing Fund," and that those books were upon the table before him as he testified. The Commissioner, himself, was on the stand for some hours. Sixteen hours were consumed in taking testimony, offered by relator, as the stipulation shows. The substance of the point made, so far as this question is concerned, is that there is no evidentiary basis for the order of removal. The stipulation shows there was a great deal of evidence taken. Since it was taken, the question, on this phase of the case, is not who offered it, but whether it supported the charges. The evidence is not before us. Since it is not before us, its sufficiency as a basis for the order cannot be reviewed. This is true though it be assumed we could, in this case, hold the order invalid on a record which contained all the evidence and showed it utterly to fail to sustain the charges. The question whether this could be done need not be decided. The failure of the Governor to prolong the hearing beyond the day for which it was set is not jurisdictional. It amounted, in the circumstances shown by the record, to what might be termed a refusal to grant a continuance after the trial had begun. Further, as pointed out by HIGBEE, J., the testimony may have shown admissions by relator which would have rendered further testimony useless, and it is shown that the books which, it would seem, would necessarily prove or disprove many of the charges, were on the table, and that the book-keeper who kept them was a witness for relator. What his testimony showed these books established, if anything, is not in the record. In the circumstances, no presumption can arise that they did not make out proof of the charges. Other charges depended upon other books of the department. With respect to others the chiefs of departments who testified had full knowledge. With respect to the refusal to continue the hearing longer, the case is quite unlike Ekern v. McGovern, 154 Wis. 157. In that case less than an hour's notice was given, and practically no opportunity to offer evidence was afforded. None was offered. In an action at law, if circumstances like those in the instant case had arisen, it would not be more than error to refuse to set a case over until another day after sixteen hours' hearing and with no more appearing than appears in this record. It would not subject the judgment to collateral attack. No stricter rule, at most, is to be applied in this case. An examination of the numerous cases cited in the briefs and such others as are accessible discloses that the objections made cannot be sustained on the record here.

There is no duty resting upon this court to comment upon the course pursued by the Governor save in so far as what was done affects the validity of his removal of the Commissioner. That act is not shown to be invalid, and that is the question presented.

For the reasons stated I concur in the denial of the writ of ouster. Higbee, David E. Blair and Elder, JJ., concur.