State v. Williams

• Decision Date: 08 June 1909
• Citation: 120 S.W. 740,221 Mo. 227
• Parties: STATE ex rel. MISSOURI PAC. RY. CO. et al. v. WILLIAMS, Judge.
• Court: Missouri Supreme Court

120 S.W. 740

221 Mo. 227

STATE ex rel. MISSOURI PAC. RY. CO. et al. v. WILLIAMS, Judge.

Supreme Court of Missouri.

June 8, 1909.

1. PROHIBITION (§ 10) — GROUNDS.

Prohibition lies as well to prevent an excessive or unauthorized application of judicial force as where a court assumes judicial power not granted by law.

2. PROHIBITION (§ 17) — JURISDICTION — PRESENTATION OF OBJECTIONS IN ORIGINAL PROCEEDING.

While as a general rule, before prohibition should issue, it ought to appear that the applicant

has applied to the inferior tribunal for relief, it is not a jurisdictional requirement, and where applicants challenged the proceedings in the lower court by motions, hearings on which were continued by the judge, and it appears from his motion in the upper court to dismiss the proceeding for prohibition that he claims jurisdiction and intends to assert it, applicants should not be sent back to the lower court merely to have entered upon its records a formal denial of their motion to dismiss the proceeding there for want of jurisdiction, even if the law requires such a motion.

3. COURTS (§ 493) — INTERFERENCE WITH PROCEEDINGS OF OTHER COURT — IDENTITY OF PARTIES.

An action by the state on the relation of a circuit attorney brought in a state court against various railroad companies to enjoin them from charging more for carrying passengers than the two-cent per mile rate prescribed by Act Feb. 27, 1907 (Laws 1907, p. 170), involved the same parties as actions brought in a federal court by the same railroads severally against the Attorney General, the State Railroad Commissioners, and various prosecuting attorneys and citizens of the state to have that act declared void, the real parties in each action being the railroads on one side and the shippers and passengers on the other, represented by the officials of the state, which was not pecuniarily interested in the suits.

4. COURTS (§ 492) — CONCURRENT JURISDICTION — STATE AND FEDERAL COURTS — PENDENCY OF PROCEEDING IN FEDERAL COURT.

The jurisdiction of the state and federal courts over the litigation being ordinarily co-ordinate, and the Circuit Court of the United States having obtained jurisdiction of the parties and subject-matter in the suit by the railroads having rendered a final decree declaring the act of February 27, 1907, void, and adjudged the rights of the railroads to charge a rate in excess of two cents a mile, and having retained jurisdiction for the purpose of enforcing its decree, a state court had no right to entertain the subsequent action on the relation of the circuit attorney, brought in effect to enjoin the railroads from charging rates in excess of those prescribed by Act Feb. 27, 1907 (Laws 1907, p. 170).

5. INJUNCTION (§ 148) — ACTIONS — NECESSITY FOR BOND — STATE A PARTY IN ITS OWN BEHALF.

Rev. St. 1899, § 4943 (Ann. St. 1906, p. 2635), authorizes the Attorney General in behalf of the state to prosecute all suits and proceedings necessary to protect the interests of the state, etc. Section 4950 (page 2635) makes it the duty of prosecuting attorneys to commence and prosecute actions in their respective counties in which the state may be concerned, etc. Held, that the circuit attorney of St. Louis and the various prosecuting attorneys of the counties are restricted to matters arising in their respective counties and which affect the interests of their respective local jurisdictions, and where the state is a plaintiff in its own behalf the action must be instituted by the Attorney General; and hence, where the circuit attorney of St. Louis brought suit to enjoin railroads in the state from charging more than a certain passenger rate, the suit was not instituted by the state in its own behalf within section 3637 (page 2050), providing that no injunction, unless on final hearing or judgment, shall issue in any case except in suits instituted by the state in its own behalf until the plaintiff or some responsible person shall give bond to the other party, etc., and upon an injunctive order issuing before hearing, a bond should have been required.

6. INJUNCTION (§ 148) — FAILURE TO GIVE REQUIRED BOND — EFFECT.

The statute exacting a bond as a condition precedent to the granting of the temporary injunction, the requirement goes to the very jurisdiction of the court, and the injunction issued without the bond was granted without jurisdiction.

Lamm, J., dissenting in part.

In Banc. Prohibition by the State, at the relation of the Missouri Pacific Railway Company and others, against George H. Williams, Judge. Writ granted.

Martin L. Clardy, Sam H. West, George P. B. Jackson, Lathrop, Morrow, Fox & Moore, and Robt. F. Walker, for relator. John Kennist and J. D. Howe, for respondent.

GANTT, P. J.

This is an original proceeding in this court to obtain a writ of prohibition to prevent the respondent from further entertaining jurisdiction of a certain injunction suit now pending in the circuit court of the city of St. Louis, over which he presides, wherein the state of Missouri, at the relation of Seebert G. Jones, circuit attorney of the city of St. Louis, is plaintiff, and the Missouri Pacific Railway Company, the Wabash Railway Company, the Missouri, Kansas & Texas Railway Company, the St. Louis & Western Railway Company, and various other railroads in the state of Missouri, are defendants.

The petition for injunction in the said case states, in substance, that the defendants are railroad corporations operating under the laws of the state of Missouri, and that each of them was prior to the ____ day of March, 1909, a competitor of each of the other defendants in the conduct and operation of railroad business in the city of St. Louis and state of Missouri, and that a number of said defendants owned and operated parallel and competing lines of railroad. The petition then contains a list of the railroad companies which it alleged are parallel and competing lines between Kansas City and St. Louis and in the city of St. Louis, and that the other railroads named therein own and operate parallel and competing lines of railroad with each other in the city of St. Louis and in other parts of the state; that, under the Constitution and laws of this state, it is the duty of each railroad company to operate and conduct its business separate and distinct from the other railroads, and to compete with each other in the rates fixed and charged for the transportation of persons and property (section 11, art. 12, Const. Mo. [Ann. St. 1906, p. 305]); that it is the duty of each of the railroad companies to see that its line of railroad is run, operated, and managed separately and by its own officers, and agents, and is dependent for its support on its own earnings, and that the facilities and accommodations afforded the public for travel and transportation are under fair and open competition (section 1062, Rev. St. Mo. 1899 [Ann. St. 1906, p. 917]); that it is made the duty of the defendants by article 12, § 23, Const. Mo. (Ann. St. 1906, p. 309), and section 1127, Rev. St. Mo. 1899 (Ann. St. 1906, p. 972), to transport passengers and freight upon their lines of railroad without discrimination, as to persons or localities in charges or in service; that said defendants, disregarding their duty and obligation under the Constitution and laws of the state of Missouri in this regard (Const. art. 12, § 14 [Ann. St. 1906, p. 306]; article 12, § 17 [page 308]; article 12, § 23 [page 309]; sections 1062, 1127, 1128, Rev. St. Mo. 1899 [Ann. St. 1906, pp. 917, 972, 973]; Act 1907, approved March 12, 1907 [Laws Mo. 1907, pp. 377, 382]), did on the __ day of March, 1909, enter into a combination and agreement to defeat fair and open competition in the management and operation of their said lines of railroad by combining and agreeing to charge, exact, and receive for carrying passengers wholly within the state of Missouri and in the city of St. Louis three cents a mile, and that each and all of said defendants obligated and bound themselves by said agreement not to carry passengers at a less rate than three cents a mile within the city of St. Louis and state of Missouri; that thereafter, to wit, on the 31st day of March, 1909, at the city of St. Louis, said defendants and each of them, in violation of the Constitution and laws of the state of Missouri, entered into a combination and agreement to defeat fair and open competition between said defendants and each of them in the management and operation of their said lines of railroad by combining and agreeing among and between themselves whereby they agreed to carry certain passengers within the city of St. Louis and wholly within the state of Missouri who could purchase or secure from them credentials or mileage books at a less rate than three cents a mile, to wit, at a rate of two cents a mile, for those who would purchase 2,000-mile credential books; and to carry certain persons at a less rate than three cents a mile, to wit, at the rate of 2½ cents a mile, who would purchase 500-mile mileage books, good upon all of the lines of the said defendants' roads; and at a less rate than three cents a mile, to wit, at a rate of 2¼ cents a mile, to each person who would purchase a 500-mile mileage book good only in the hands of said bookholder on the lines of such defendant road issuing such mileage book; but that said defendants and each of them at said time and place also combined and agreed among themselves, in violation of their obligation under the Constitution and laws of the state of Missouri to conduct and operate their said railroad business for the accommodation and transportation of the general public "under fair and open competition," that they would exact and receive from all other persons riding upon their said lines of railroad wholly within the state of Missouri and in the city of St. Louis, who did not purchase or secure said credential or mileage books, a charge of three cents a mile, as had been...