Pogue v. Swink

• Decision Date: 14 September 1953
• Docket Number: Nos. 43377,43378,No. 2,s. 43377,2
• Citation: 261 S.W.2d 40,364 Mo. 306
• Parties: POGUE v. SWINK. HEFFRON v. SWINK
• Court: Missouri Supreme Court

Page 40

261 S.W.2d 40

364 Mo. 306

POGUE v. SWINK.

HEFFRON v. SWINK.

Nos. 43377, 43378.

Supreme Court of Missouri, Division No. 2.

Sept. 14, 1953.

Motion for Rehearing or to Transfer to Court en Banc Denied

Oct. 12, 1953.

W. A. Brookshire, Columbia, for appellant.

Roberts and Roberts and Smith and Smith, Farmington, for respondent.

BOHLING, Commissioner.

Felix Pogue sued J. O. Swink for false imprisonment in the Circuit Court of St. Francois county, Missouri, in two counts, asking $20,000 damages ($10,000 actual and $10,000 punitive) in each count. Theodore Heffron filed a like suit. The venue was changed to the Circuit Court of Stoddard county, where motions of the plaintiffs to remand their respective cases to the Circuit Court of St. Francois county were overruled and the motion of defendant in each case to dismiss was sustained. Each plaintiff has appealed and attacks the above-mentioned rulings. The suits arose out of the same state of facts, experienced identical procedural steps and results, and have been consolidated for determination.

At the time involved the Honorable J. O. Swink, defendant, was Judge of the Twenty-seventh Judicial Circuit of the State of Missouri, which included St. Francois county (Sec. 478.163-statutory references are to RSMo 1949 and V.A.M.S., unless otherwise stated); and the two plaintiffs were Judges of the County Court of St. Francois county.

On January 15, 1951, defendant, as Judge aforesaid, entered an order authorizing the salary of Julia F. Presnell as Deputy Circuit Clerk to be changed from $1,980 to $2,160 per year, effective as of January 1, 1951. Sec. 483.345.

By a citation served on February 3, 1951, the plaintiffs and Gordon Hughes, also a Judge of said County Court and, we understand, since deceased, were summoned to appear before the Circuit Court of St. Francois county on February 5, 1951, to show cause why they should not be punished for contempt of said court for disobeying the order increasing the salary of said Deputy Circuit Clerk.

When plaintiffs so appeared on February 5, 1951, defendant, in open court, inquired if they intended to obey the order aforesaid. Upon plaintiffs answering 'No,' defendant ordered the Sheriff of said county to imprison the plaintiffs in the county jail for twenty-four hours. The Sheriff thereupon imprisoned the plaintiffs in the county jail for twenty-four hours.

On February 6, 1951, the plaintiffs were taken from the county jail by the Sheriff to the circuit courtroom and brought before defendant and again asked if they intended to obey said order. Upon plaintiffs again answering 'No,' defendant ordered the Sheriff to re-imprison the plaintiffs in the county jail for twenty-four hours and the Sheriff again imprisoned the plaintiffs in the county jail.

The plaintiffs instituted a habeas corpus proceeding in the St. Louis Court of Appeals and were released from imprisonment about 2:00 p. m. February 6, 1951, and in said proceeding later obtained their absolute discharge from said imprisonment, the court stating: 'the judges of the county court cannot be held in contempt for violating a court order upon them for none exists * * *.' Pogue v. Smallen, Mo.App., 238 S.W.2d 20, 22.

Thereafter, the plaintiffs instituted the instant actions.

Defendant filed a motion to dismiss each action.

By an order entered in each case on June 9, 1952, reciting, so far as material: 'Now comes Hon. J. O. Swink, Judge of the 27th Judicial Circuit, being a party litigant in the cause, disqualifies, and counsel failing to agree upon a Special Judeg, the cause' was transferred to the Circuit Court of Stoddard county, in the Twenty-second Judicial Circuit of the State of Missouri.

On the overruling of the motions to remand the cases to the Circuit Court of St. Francois county the position of the plaintiffs is that defendant, a litigant and judge, had no legal right under Sec. 508.100 to enter the aforesaid order changing the venue. Defendant contends he properly disqualified himself, and that the transfer of the cases to another circuit was proper under Sec. 508.100 'in that there was no agreement upon a special judge.'

Provisions for special judges to preside in the circuit courts arose under Sec. 29, art. VI, Mo.Const.1875, reading: 'If there be a vacancy in the office of judge of any circuit, or if the judge be sick, absent, or from any cause unable to hold any term or part of term of court, in any county in his circuit, such term or part of term of court may be held by a judge of any other circuit; and at the request of the judge of any circuit, any term of court or part of term in his circuit may be held by the judge of any other circuit, and in all such cases, or in any case where the judge cannot preside, the General Assembly shall make such additional provision for holding court as may be found necessary.'

The General Assembly, proceeding under said Sec. 29, enacted Laws 1877, pp. 217, 218, R.S.1879, Secs. 1106-1113; now Secs. 478.033, 478.037, 478.043-478.060, relating to the agreement upon or the election of an attorney of the Bar to act as special circuit judge. Sections 2, 3 and 6 of said act are now Secs. 478.037, 478.043 and 478.053, respectively. We quote the material provisions of said sections.

Section 478.037: 'Whenever * * * the judge is interested or related to, or shall have been counsel for either party, or when the judge, if in attendance, for any reason cannot properly preside in any cause or causes pending in such court, and the parties to such cause or causes fail to agree to select one of the attorneys of the court to preside and hold court for the trial of cause or causes, the attorneys of the court who are present, but not less in number than five, may elect one of its members then in attendance having the qualifications of a circuit judge, to hold the court for the occasion.'

Section 478.043: 'The election shall be held by the clerk of the court * * *.'

Section 478.053: 'The parties to an action may agree upon one of the attorneys of the court to preside and to hold the court for the trial of such action * * *.'

Section 508.100, upon which the parties rely, was Sec. 3730, R.S.1879, and reads: 'If the judge is interested or related to either party, or shall have been of counsel in the cause, the court or judge shall award such change of venue without any application from either party, unless all the parties in the cause consent that such judge may sit on the trial thereof, or a special judge for the trial thereof be agreed upon by the parties, or elected in the manner provided by law.'

Our Constitution of 1945 adopted a different plan with respect to this subject matter. The applicable provisions follow.

Article V, Sec. 6: 'The supreme court may make temporary transfers of judicial personnel from one court to another as the administration of justice requires, and may establish rules with respect thereto.' (Supreme Court Rule 11 was adopted pursuant to said Sec. 6.)

And art. V, Sec. 15: '* * * Any circuit judge may sit in any other circuit at the request of the judge thereof. * * *'

The Constitution of 1945 also provided, so far as material, that the Constitution of 1875 was superseded by the Constitution of 1945, Schedule, Sec. 1, and that all laws inconsistent with the Constitution of 1945 ceased to be effective on July 1, 1946, Schedule, Sec. 2.

Some cases considering Secs. 6 and 15, supra, are:

State v. Scott, 359 Mo. 631, 223 S.W.2d 453, 455, held that a circuit judge transferred to another circuit under Sec. 6, art. V, Mo.Const.1945, had jurisdiction; and stated that prior criminal procedure statutes (Secs. 545.670 and 545.690) providing for calling in another judge could not override the later constitutional provisions relating to the subject matter, and expressed doubt as to the validity of said sections.

State v. Emrich, 361 Mo. 922, 237 S.W.2d 169, 172, where a circuit judge had been called in under Sec. 15, art. V, Mo.Const.1945, followed State v. Scott, supra, stating: 'And we hold it [Sec. 15] was self-enforcing.'

The authority of the Supreme Court to make temporary transfers of judicial personnel under Sec. 6 of said Article likewise is self-enforcing.

In Cantrell v. City of Caruthersville, Mo.Sup., 255 S.W.2d 785, 786, the authority of a circuit judge to call in another judge was questioned on the ground Sec. 478.060 required the reasons for the calling in of another judge to be entered of record and had not been complied with. We held the provisions of Sec. 478.060 (being Sec. 8, Laws 1877, p. 218, adopted under the Constitution of 1875) had 'nothing whatever to do with it', again stating Sec. 15, supra, was self-enforcing. See also State ex rel. Ellis v. Creech, Mo.Sup., 259 S.W.2d 372.

Hayes v. Hayes, Mo.Sup., 252 S.W.2d 323, 329, did not, the same as the cases above mentioned, present the issue at bar, but the case states that in circuits within Sec. 508.110, multiple judge circuits, the case, upon an application for a 'change of judge', should be transferred to another division of the court, and 'in all other instances' the judge should call in another circuit judge or request this court to transfer a circuit judge to preside. Secs. 6 and 15, supra, and Supreme Court Rule 11.

A function of a Constitution is to establish the framework and general principles of government. Constitutional legislation prevails over statutory enactments, being superior. We have said: 'Furthermore, it is hornbook law that, 'if a previous law conflicts with a new constitutional provision, the law withers and decays and stands for naught, as fully as if it had been specifically repealed.'' State ex rel. Dengel v. Hartmann, 339 Mo. 200, 96 S.W.2d 329, 330; Curators of Central College v. Rose, Mo.Sup., 182 S.W.2d 145, 148. Consult also Ex parte Snyder, 64 Mo. 58, 60(I); Deal v. Mississippi County, 107 Mo. 464, 468, 18 S.W. 24, 25(2), 14 L.R.A. 622; Marsh v. Bartlett, 343 Mo. 526, 121 S.W.2d 737,...