Mason, Plaintiff in Error, vs. Woerner & Schleier, Defendants in Error, 18 Mo. 566

Gamble, Judge, delivered the opinion of the court. The act establishing the St. Louis Land Court was approved February 23d, 1853. Its last clause declares “this act to take effect from its passage.” The first

section is in these words : “A court o£ record to be called tbe St. Louis Land Court is hereby established within and for the county of St. Louis.” The second

section gives to the court “ original and exclusive jurisdiction in all actions to be brought hereafter at law or equity,” in a great variety of cases stated in the section, comprehending all actions for the possession of land, and nearly all proceedings by which the title or possession of land can be affected. It is provided in the fifth section, that there shall be a judge of the court, whose qualification, election and compensation are provided for, and the terms of the court are, by that section, fixed for the first Mondays in March and October.

Section 12 provides for the qualification and powers of the clerk of the court, and

section 13 declares that “ the first election for a judge and clerk of said court shall be held on the first of August next, and the governor shall issue his writ of election accordingly.” The subsequent sections provide for the filing of abstracts of the judgments of other courts with the clerk of the Land Court, before the judgments shall become liens on real estate, and also for the filing of transcripts of the judgments of justices of the peace, in order to make them liens, and for the filing of mechanics’ liens arising under the acts giving them liens on buildings.

The plaintiff brought the present action in the Court of Common Pleas, after the passage of the act establishing the Land Court, for the purpose of recovering the possession of a tract of land. The defendant demurred, because of want of jurisdiction in the court to entertain the cause. The demurrer was sustained, and the case is brought here by writ of error. 1. It is evident that the questions involved in this case affect many important interests of the people of St. Louis.

Between the approval of the act and the organization of the court by the election of the officers, there intervened a period of some six months, in which there were probably not only many actions and proceedings affecting the title to real estate commenced in other courts, but many judgments were rendered in such courts and many transcripts from justices, and liens by mechanics were filed, by wbicb tbe title to real estate was understood to be incumbered; and a construction is now to be given wbicb is to affect all sucb proceedings.

Tbe question in this case is, whether tbe jurisdiction of tbe other courts, in causes wbicb were previously within their cognizance, is, by the passage of this act, and before tbe organization of tbe Land Court, by tbe election of tbe necessary officers, entirely taken away ? It is to be observed, that tbe jurisdiction of tbe other courts is not affected by this act in any other manner than by tbe grant of exclusive jurisdiction to tbe Land Court. It is not said that tbe other courts shall not exercise jurisdiction in tbe classes of cases mentioned in tbe second section.

It is by tbe grant of exclusive jurisdiction to tbe Land Court that theirs is cut off. Now it is obviously tbe design of tbe general assembly that jurisdiction of sucb causes shall continue to be entertained, and justice in them administered by some court.

It would be improper to impute to tbe legislature, sitting under a constitution that declares, “ that courts of justice ought to be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice ought to be administered without sale, denial or delay,” tbe design to suspend the administration of justice in several of tbe most important classes of cases that are brought in our courts.

As it is impossible to imagine that sucb purpose was really entertained, it is not proper that the act shall have that effect, if any legitimate construction of its language will avoid sucb result. When, then, it is seen that tbe jurisdiction of tbe existing courts is only destroyed by the actual investiture of another tribunal with that jurisdiction, tbe question arises, when is sucb exclusive jurisdiction vested in tbe Land Court?

It appears to be an answer consistent with reason and analogy, that it is vested only when there is sucb organization of tbe tribunal under tbe law, as renders tbe exercise of tbe jurisdiction practicable. When an estate or power is granted by words of present grant, we expect, in ordinary cases, to find a grantee capable of bolding the estate or exercising the power. The .first

section of the act establishes the court, but the expression employed, does not, by any power in itself, cause the court then to exist. The word “ court,” with reference to a judicial tribunal, is used in different senses. Lord Coke says, a court is aplace where justice is judicially administered. Coke’s Lit. 58a.

Another definition is, aa tribunal established for the public administration of justice, and composed of one or more judges, who sit for that purpose at fixed times and places, attended by proper- officers.” There is no definition given by any author, which recognizes the existence of a court distinct from the officers who are charged with the duty of administering the law. The Land Court had not, and could not have had existence while there were no officers having any duties to perform in relation to its jurisdiction.

If we were to suppose the act repealed before the election of the officers, it would be difficult to conceive of a court as having existed under its provision, or possessing jurisdiction under the law.

We think then that the language of the act conferring exclusive jurisdiction upon the Land Court, although speaking in the present tense, is necessarily to operate only in the future, when a court is organized capable of executing its functions, and that consequently, the exclusion of other courts from the exercise of jurisdiction over the same cases, is only effected by the actual existence of an organized land court.

In this view of the case, as this action was commenced in May, 1858, after the passage of the act, and before the election of the judge and clerk of the Land Court, the jurisdiction of the Common Pleas was not ousted by the act itself, and the demurrer was improperly sustained. Questions under the same act may arise as to the liens which, by different clauses of this act, are made to depend on their being-filed in the Land Court, and we use those parts of the act as illustrating the position we maintain in regard to jurisdiction.

It is evident that the act contemplates the continuance of the different provisions of law by which liens are created, and, for the purpose of convenience, provides that the evidence of such incumbrances shall be brought together in the office of the Land Court.

During the interval between the passage of the act and the election of the officers, the different courts of the county were in session, rendering judgments; justices of the peace were also engaged in giving judgments which were capable of being made liens upon real estate and enforced by execution, and mechanics were engaged in erecting buildings, which were subject to liens for the labor and materials employed in their erection. This latter class of liens were allowed but a short period for the claimants to file them in the proper office.

All judgments and mechanics’ liens were, by this act, to be filed in the office of this new court, in order to be liens on the real estate of the debtor. Now it is inconceivable that the general assembly should have designed to prevent judgments from being liens until filed in the office of the Land Court, when there could be no such office for six months after the passage of the act.

In order to give a reasonable construction to the language of the act, it is necessary to restrict these requirements of the act to the filing of such judgments and liens as were rendered or filed after there existed an officer with whom they could be filed. The whole of the difficulty arises from the clause in the statute which gives it effect from its passage. Now grant that it is to have effect from its passage, yet such provisions in the body of the act as necessarily apply to things in the future, must apply to such things when they come into existence.

For instance, it is declared that there shall be two terms of the court held at the city of St. Louis, on the first Mondays in March and October. Now, although the act was passed on the 23d of February and took effect from its passage, it is clear that no term was to be held in the month of March next succeeding the approval of the act, because there could be no court to hold any term at that time. There was to be a court in the future and when the court was organized, it would hold terms in March and October.

The word “hereafter” is used in several sections and contributes to increase the difficulty in construing the act. The second

section confers the exclusive jurisdiction in all actions to be brought hereafter at law or equity, founded, &c. The sixteenth

section enacts, “ that all liens of mechanics, builders or artizans shall hereafter be filed in the office of the clerk of the Land Court. This word in

an act would ordinarily be understood as applying to the time immediately subsequent to the taking effect of the act, but its signification or application may be controlled by the context. That the

section cannot apply to a lien required to be filed immediately after the act took effect, and before there was any office of the the clerk of the Land Court, is evident, although the word “hereafter” is used.

The act is designed to be one of perpetual duration, and its terms are used, not with reference to the moment of time when the act takes effect, but providing for a new court to aid in administering the law, it looks to the jurisdiction which, in the future, this court, when organized, shall exercise, and in reference to that whole future, it designs to provide that “ hereafter,” that is, after the act has had its effect in organizing a new court, such court shall possess the powers and functions detailed in the act.

There are certain parts of the act that of course must go into effect before the organization of the court, for they were necessary to its organization. The provisions for a writ of election to be issued by the governor, and for holding the election itself must, of course, go into effect at some time previous to the time of the election, and no doubt this necessity occasioned the oversight in making the whole act take effect from its passage, instead of giving effect to different sections at different times.

Upon the whole, however, we are satisfied that the proper construction of the act requires the different sections relating to jurisdiction and to filing judgments and liens, to commence their operation only when the new court was so provided with officers as to render the exercise of the jurisdiction, and the filing of judgments and liens practicable, and that, in the mean, time, the jurisdiction and powers of the other courts remained unaffected. The judgment is, with the concurrence of the other judges, reversed, and the cause remanded.