"The gist of the opinion is that this court never acquired jurisdiction of the cause, because the order of certification does not state the facts that it should state under the Constitution, and this conclusion is reached by considering, not the order of certification alone, but by considering the order and the majority opinion of the majority, or noncertifying judges, together, as well as the opinion of this court in a certiorari opinion involving this case.
"If the certification order made does not conform to the rule announced by the Constitution, as to constitutive facts, the results of the opinion would be proper. But this order conforms to the Constitution. The Court of Appeals opinion is to be found in 189 S. W. 599, and the order of certification is found on page 601, and reads: `Johnson, J., deeming the decision to be in conflict with the decisions of the Supreme Court in St. Louis v. Gaslight Co., 155 Mo. 7, 55 S. W. 1003, Johnson County v. Wood, 84 Mo. 489, Briggs v. Munchon, 56 Mo. 467, and West v. Bretelle, 115 Mo. 653, 22 S. W. 705, asks that the case be certified to the Supreme Court; therefore it is accordingly certified.'
"As said by McFarlane, P. J., in Smith v. Railway Co., 143 Mo. loc. cit. 38, 44 S. W. 719: `But the order is not the fact that confers the jurisdiction upon this court. Jurisdiction is conferred by the fact that one of the judges deems the decision contrary to a former decision; the jurisdiction vests whether an order is made or not. If the order was made for the reason appearing upon the record that one of the judges deems the decision contrary to a former decision of one of the courts, we might presume the existence of the jurisdictional fact, though the record did not otherwise show it.'
"In other words, whenever one of the judges express the view that he deems the opinion of the Court of Appeals `contrary to any previous decision * * * of the Supreme Court,' this fact alone confers jurisdiction upon this court for the final determination of the case. For this reason we can, by mandamus, compel the Court of Appeals to certify the case here, although such court did not enter an order of certification at all. If the record shows this jurisdictional fact, i. e., that one of the judges deems the opinion contrary to a previous opinion of this court, it is sufficient. But in this case the very order of certification shows the jurisdictional fact. Upon its face it recites that Judge Johnson deems the decision to be in conflict with certain designated opinions of this court. This is substantial compliance with the Constitution. The language used does not have to be the exact language of the Constitution, if the words used have the same import, for in the Smith Case, supra, 143 Mo. loc. cit. 39, 44 S. W. 720, it is further said: `In order to authorize the transfer of a cause, it is not necessary that the word "deem" should be used to express the conclusion of the disagreeing judge, but such appropriate words should be used as will indicate that he reached a judicial conclusion that a conflict existed.'
"It must be recalled that the Constitution requires the court to certify the case. The court is made up of the majority judges, and the minority judge. The court in this case recites of record the jurisdictional fact, i. e., that Johnson, J., deemed the opinion of the Court of Appeals to be in conflict with certain named opinions of this court. This is sufficient to confer jurisdiction here, and therefore the order to remand called for by the majority opinion is wrong. It is further said in the Smith Case, supra, 143 Mo. loc. cit. 37, 44 S. W. 719: `The Constitution evidently requires that one of the judges must conscientiously form an opinion that the decision rendered is contrary to a prior decision, and this opinion should appear upon the record.' It is said in State v. Philips, supra, [96 Mo. 571, 10 S. W. 182]: `It is for the dissenting judge to solve that question in his own mind and conscience, give it expression in authentic form upon the records of the court in explicit terms; and only when this is done does it become the duty of the court to certify and transfer the cause.' This expression was approved in the later case of State ex rel. v. Smith, supra, and the still later case of State ex rel. v. Rombauer, supra [125 Mo. 635, 28 S. W. 968]. In the case last cited it is said further: `Whether a case within the exclusive appellate jurisdiction of the Courts of Appeal can be transferred to the Supreme Court * * * depends upon the judicial determination by one of the judges of that
court that its decision in such case is in conflict with a previous decision of one of said courts or of the Supreme Court.' By these opinions the Constitution is construed to mean that in order to confer jurisdiction upon this court, one of the judges of the Court of Appeals must believe or entertain the opinion that the decision of the court is contrary to a former decision of one of the courts named. Indeed, no other construction can fairly be given to it. The ordinary meaning of the word `deem,' according to the Century Dictionary, is: `To think, judge or hold as an opinion; decide or believe on consideration.'
"In the case of Bank v. Woesten, 144 Mo. 407, 46 S. W. 201, the court had under consideration a peculiar order of certification, in which the Court of Appeals judges agreed that their holding was contrary to the last holding of this court on the same principle of law, and for that reason it was held that we were without jurisdiction, but Gantt, C. J., used some language (144 Mo. loc. cit. 409, 46 S. W. 202) which is pertinent here: `When, therefore, one of said courts certifies that its unanimous opinion and judgment, in its opinion, is not in harmony with a last controlling decision of this court, it is but saying that it declines to follow the decision of this court. Nor is the refusal to be bound by the decision of this court less marked because that court certifies the case to this court for our judgment on the question. No provision is made for taking the opinion of this court in that way. It is only upon a division of opinion in the appellate court that it can certify the cause to this court. When that court unanimously concurs in its interpretation of a decision of this court but one alternative remains, and that is to follow it. If, on the other hand, it deems any decision of this court not applicable to the facts before it, in judgment, the mere fact that such decision of this court is later in date, and is cited as controlling authority, will not prevent that court from judicially determining which decision it regards as the last upon the question presented in their record. Indeed they are required to do so, and cannot evade that responsibility by sending it to this court to correct what the Court of Appeals may deem conflicting opinions of this court.'
"So too it was held in Houck v. Waterworks & Electric Light Co., 215 Mo. loc. cit. 478, 114 S. W. 1099: `To our mind it is clear that the Constitution imposes upon the Courts of Appeals the duty to determine for itself "the last previous rulings of the Supreme Court," and when it so determines, the further constitutional mandate is clear.'
"In case of a dissent, the dissenting judge must determine the same question.
"In the case at bar, when we quashed the first record of the Court of Appeals therein, the case then stood in that court just as if it had never been decided. Our opinion in the certiorari case, it is true, should have been their guide upon a further hearing so far as the question there disposed of was concerned. This because it was the last opinion of this court upon the question of law there discussed. But all this did not preclude Judge Johnson from doing what he did in this record. Such judge might have concluded that the facts we held in judgment were not the real facts in the case, and that for that reason found that our last opinion was not a controlling one, although growing out of a certiorari to bring up their former record. As said in the Woesten Case, supra, the dissenting judge of the Court of Appeals had the right to determine which in his mind was the last judicial determination of the law upon a given state of facts. He is presumed to do this dispassionately and judicially, and not from pique engendered by any previous action of this court. In the instant case the dissenting judge might have believed that the facts held in judgment by the second opinion were not the facts held in judgment by the former opinion, which opinion and judgment we quashed. But we need not theorize as to what reasons prompted his judgment that the present opinion is contrary to the previous opinions by this court, which said opinions are named. We must indulge the presumption that his dissenting views and judgment were conscientiously reached, having due regard...
