State ex rel. Tate v. Sevier

Decision Date13 February 1934
PartiesState of Missouri at the Relation of P. A. Tate, Relator, v. Nike G. Sevier, Judge of the Cole County Circuit Court
CourtMissouri Supreme Court

Alternative writ quashed.

Gus O. Nations for relator.

(1) Respondent waived his demurrer by filing a return on the merits, and, hence, relator's motion to strike out the demurrer should be sustained; and, since the facts stated in the alternative writ are undenied by the return and no facts are proven as a defense, relator is entitled to his peremptory writ. State ex rel. v. Reynolds, 266 Mo 12; State ex rel. v. Gordon, 233 Mo. 383; State ex rel. v. Bright, 224 Mo. 524; State ex rel. v Sevier, 62 S.W.2d 895. (2) The petition filed in the Cole County Circuit Court stated a cause of action under Section 10705, and upon the filing it was the mandatory duty of the circuit court to accept and exercise the jurisdiction vested in it by said section of law, and to that end to issue the alternative writ prayed for. Sec. 10705, R. S. 1929; Const., Art. IV, Sec. 57; State ex rel. v. Mo. Pac Ry., 114 Mo. 813, 21 S.W. 814; Moses on Mandamus, pp. 201, 202; State ex rel. v. Sevier, 62 S.W.2d 895. (3) The circuit court had no right to refuse mandamus. "Mandamus is a civil remedy provided by law in certain cases from which it necessarily follows that it is as much error to refuse it when warranted by all the facts and circumstances as it would be to refuse a lawful remedy for any other infracted legal right. Such a refusal in either case would be an abuse of judicial power and discretion." State ex rel. City of Marshall v. Hackmann, 274 Mo. 551, 203 S.W. 961. (4) Mandamus lies from the Supreme Court to compel an inferior court to hear and determine a cause or matter in issue when the inferior court possesses jurisdiction to act in the premises but refuses to perform a plain legal duty, and where petitioner has no other adequate remedy. State ex rel. Lamport v. Robinson, 257 Mo. 584; State ex rel. Schonhoff v. O'Bryan, 102 Mo. 254; State ex rel. v. Gibson, 187 Mo. 536; State ex rel. v. Grimm, 220 Mo. 483; State ex rel. v. Broaddus, 234 Mo. 331.

H. P. Lauf, Joseph T. Davis and Allen C. Orrick for respondent.

(1) The issuance of a writ of mandamus is not a matter of right, but lies in the sound judicial discretion of the court, and it will not be issued where the right is doubtful or there is another adequate remedy. State ex rel. Tate v. McKittrick, 62 S.W.2d 899; State v. Linville, 8 S.W.2d 623; State v. Smith, 48 S.W.2d 892; In re Skinner and Eddy, 265 U.S. 86, 68 L.Ed. 915; United States ex rel. Arant v. Lane, 249 U.S. 650, 63 L.Ed. 651; State ex rel. v. Dickey, 219 S.W. 366; State ex rel. v. Knight, 26 S.W.2d 1017. (2) Mandamus will not issue where there is an adequate remedy by appeal, and under the provisions of Section 10705, Revised Statutes 1929, petitioner had an adequate remedy by appeal. Ferris on Mandamus, sec. 229, p. 401; 18 R. C. L., sec. 46, p. 133; State ex rel. v. Seehorn, 283 Mo. 519; State ex rel. v. Hill, 272 Mo. 214. (3) The Circuit Court of Cole County heard the petition for mandamus filed in that court and entered its final decree denying the prayer for mandamus and dismissing the suit. Under these circumstances, the Supreme Court will not issue its writ of mandamus for the purpose of reversing the judgment of the circuit court and commanding such court to render a particular decision and to issue an alternative writ of mandamus. 38 C. J., sec. 190, p. 656; Ex parte William H. De Groot, 73 U.S. 497, 18 L.Ed. 887; In re Park and Tilford, 245 U.S. 82, 62 L.Ed. 165; Ex parte Slater, 246 U.S. 128, 62 L.Ed. 622.

Frank, J. All concur, except Hays J., absent.

OPINION
FRANK

Mandamus: The Fifty-Seventh General Assembly enacted, and the Governor approved House Bill 23 (Laws 1933 p. 256) relating to the manufacture, transportation, sale and inspection of nonintoxicating beer. The bill passed with an emergency clause and was approved on March 15, 1933. Thereafter and within the time provided by statute, petitioner on July 21, 1933, tendered to the Secretary of State for filing a petition asking that House Bill 23 be referred to the people for their adoption or rejection at the election to be held on November 6, 1934, as provided by the initiative and referendum provisions of the Constitution and statutes of the State. The Secretary of State refused to accept or file the petition so tendered. Thereafter, on July 26, 1933, petitioner filed a petition in the Circuit Court of Cole County, of which respondent is judge, praying said court to issue its alternative writ of mandamus commanding the Secretary of State to receive and file said referendum petition or show cause why he should not do so, and requested that said cause be advanced and heard and determined without delay, as provided by law, and that a peremptory writ of mandamus be issued commanding said Secretary of State to accept and file said referendum petition, and for all further necessary relief.

Respondent judge, on July 29, 1933, by order entered of record, refused to issue an alternative writ and dismissed the petition therefor. Thereafter, on the same day, July 29, 1933, petitioner sought the intervention of this court through a petition asking that we issue our writ of mandamus commanding and requiring respondent judge, to set aside the order dismissing aforesaid cause and reinstate said cause on the docket, to issue an alternative writ of mandamus to the Secretary of State commanding him to accept and file said referendum petition or show cause why he should not do so, to advance said cause on the docket of said circuit court, and to hear and determine same without further delay. We issued our alternative writ. Respondent made return thereto to which relator replied, and the cause was submitted on the pleadings.

Petitioner's theory, as revealed by the pleadings, is that no emergency existed within the meaning of the Constitution and laws of the State, calling for the passage of House Bill 23, and for that reason such law is subject to the referendum in spite of the emergency clause attached thereto.

Respondent judge's theory, as revealed by his return to our alternative writ, is that an emergency did exist within the meaning of the Constitution and laws of the State, which authorized the General Assembly to pass House Bill 23 with an emergency clause, and for that reason such bill became an effective law from and after the date of its passage and approval, and therefore, is not subject to referendum.

Petitioner contends that it was the mandatory duty of respondent judge to issue an alternative writ upon the filing of the petition therefor, and his refusal to do so was an arbitrary abuse of power and a willful refusal to exercise the jurisdiction of the court. On the other hand, respondent judge contends that he did exercise jurisdiction in the case; that he gave petitioner a hearing on his application for the writ; that after the matter of issuance of the alternative writ was duly presented and argued in open court, and after duly considering same he entered of record an order refusing the alternative writ and dismissing the petition. The opposing contentions of the parties must be determined by the facts appearing in the pleadings, and the law applicable to such facts.

Respondent's return contains, among others, the following allegation:

"That the petitioner herein filed his application for a writ of mandamus directed to Honorable Dwight H. Brown, Secretary of the State of Missouri, before your respondent, as Judge of the Circuit Court of Cole County, Missouri, on the 26th day of July, 1933, and requested the immediate issuance of an alternative writ. Your respondent, instead of issuing said alternative writ immediately, directed the petitioner herein to give notice to the Secretary of State and all parties interested, and then set said matter on his docket for the 29th day of July, 1933, and also notified the petitioner that on said date the petitioner could present such matters of fact and law and that the same would be heard and given due and deliberate consideration.

"That on the 29th day of July, 1933, said petitioner, through his counsel, Gus O. Nations, Esquire, and H. P. Lauf, Esquire, counsel for certain interveners, apppeared before your respondent, as Judge of the Circuit Court of Cole County, Missouri, in open court, where the matter of the issuance of an alternative writ, as prayed for by the petitioner, was fully presented and argued. After giving due weight and consideration to all of the facts and circumstances, as well as the law applicable, and arguments presented, your respondent made and issued, in the sound discretion of the court, an order of record in said cause as follows:

"'Issuance of alternative writ denied and refused and petition dismissed.' . . .

"Your respondent, in hearing the instant case based upon said application for a writ of mandamus, besides giving careful and due consideration to the law involved, based upon the facts presented by the application, also gave due consideration to certain facts which were and are of common and general knowledge, which facts were taken judicial knowledge of by the court, and which facts were of such common and general knowledge that the Legislature of the State of Missouri had before it when it considered and determined the necessity for the emergency clause herein complained of. . . .

"That an emergency existed with the meaning of the law and the Constitution of Missouri at the time of the passage of said bill by the Legislature of Missouri, not only for the reasons already assigned but also for the following reasons: . . ."

The return further pleads facts of which respondent...

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