State v. Rombauer

• Decision Date: 15 May 1891
• Parties: STATE ex rel. ROGERS v. ROMBAUER et al.
• Court: Missouri Supreme Court

16 S.W. 695

105 Mo. 103

STATE ex rel. ROGERS v. ROMBAUER et al.

Supreme Court of Missouri, Division No. 1.

May 15, 1891.

COURT OF APPEALS — JURISDICTION — QUO WARRANTO — PROHIBITION — WHEN LIES.

1. The court of appeals has no jurisdiction to issue a writ of quo warranto against a member of the school board of St. Louis city to determine his right to that office. Following State v. Rombauer, (Mo.) 14 S. W. Rep. 726.

2. Where a court, without jurisdiction, has issued a writ of quo warranto to determine title to an office, a writ of prohibition will lie, although judgment of ouster, with costs, has been entered, and execution issued, when it appears that it has not yet been enforced.

3. The judges of the supreme court may issue a preliminary writ of prohibition in vacation, to be returned at the next term of court.

Prohibition.

An application was made by relator, Mr. Rogers, a member of the school board of St. Louis city, against the judges of the St. Louis court of appeals, to prohibit the latter from entertaining jurisdiction of a cause in quo warranto wherein the state, at the relation of the circuit attorney of St. Louis, was plaintiff, against him, then pending in that court. The object of the last-named action was to oust Mr. Rogers from his office as a member of that board. A preliminary rule upon defendants to show cause to the supreme court at its next session why a writ of prohibition should not be issued was made by one of the judges of this court during its vacation, and served on defendants; but they proceeded, nevertheless, to hear and determine the cause, and rendered a judgment of ouster from his office against Mr. Rogers. That judgment included also a recovery against him of the costs and charges in said cause. A writ to carry the judgment into effect was then issued by the St. Louis court of appeals, in which, among other things, the total costs and charges adjudged against the then defendant (relator here) were taxed at $20, and the same ordered to be made from the goods, chattels, and real estate of said defendant. This writ was returned, by the officer to whom it was directed, as having been executed, May 14, 1890, "by reading the same to Henry L. Rogers." No step to otherwise enforce the judgment or execution appears to have been taken. All these steps took place before the return-day of the original rule upon defendants. Shortly afterwards, May 19, 1890, Mr. Rogers obtained in the cause a further rule from the supreme court in term, requiring defendants to show cause why they should not be prohibited from taking jurisdiction of said action. The return of defendants discloses (among other things) that the issues in the case in the St. Louis court of appeals raised a question of the proper construction of the constitution of this state. To this return a reply was filed, repeating the history of the proceedings. The cause was then submitted for judgment upon these pleadings.

F. M. Estes, W. H. Clark, and T. P. Bashaw, for relator.

BARCLAY, J., (after stating the facts as above.)

Relator asks a prohibition against the judges of the St. Louis court of appeals in the circumstances shown in the statement of facts accompanying this opinion.

1. The case in quo warranto in that court against the present relator involved, as is now conceded, a construction of the constitution of Missouri in a very important particular. This appears from the record here, including the published opinion of that court on the demurrer to the information. State v. Rogers, (1890,) 41 Mo. App. 335. The case belonged within the final appellate jurisdiction of this court. Consequently the defendants, as judges of the court of appeals, had no jurisdiction to entertain or adjudicate it. This was directly ruled, quite lately, in an opinion by our Brother BLACK, which received the concurrence of all the members of this court, and to which nothing need now be added. State v. Rombauer, (1890,) 101 Mo. 499, 14 S. W. Rep. 726. The present relator objected, at every stage of the proceedings, before and after judgment, to the jurisdiction of the St. Louis court of appeals in the premises, but without avail. The defendants proceeded, notwithstanding, to enter the judgment of ouster and for costs against him. It appears, further, that, when the second rule to show cause was served on defendants herein, the judgment of the court of appeals had not been fully satisfied. The costs (taxed by the clerk of that court at $20) had not been collected. As to that part, at least, the judgment was still liable to enforcement against the defendant, now the relator here. At what exact point in an action, over which jurisdiction has been assumed which does not lawfully exist, it reaches such finality as precludes a stay of proceedings by writ of prohibition, is a question involved in some uncertainty, in the present state of the law on the subject. This case does not require us to attempt to fix that point with precision. This much, we think, is clear: Where anything yet remains to be done to carry the alleged judgment into effect, whereby the relator's interest may be in any wise prejudiced, prohibition will lie to prevent such action. Here that judgment has not been fully executed; and, as it is unauthorized by law, (as shown in State v. Rombauer, above,) we think relator entitled to the writ asked to stay its enforcement. Its scope, in this instance, we shall attempt to define further on.

2. But there is another phase of the case that cannot properly be ignored. We have held, after thorough and prolonged consideration, first in one of the divisions, and afterwards by the court in banc, that a preliminary rule (similar to that in the present case) may lawfully be issued by one of the judges of this court in vacation, as the necessary process to initiate a proceeding in prohibition at...