State ex rel. and to Use of Public Service Com'n v. Blair

• Citation: 146 S.W.2d 865,347 Mo. 220
• Decision Date: 03 December 1940
• Docket Number: 37339
• Parties: State of Missouri at the relation and to the use of Public Service Commission of the State: Roy McKittrick, Attorney General; A. B. Lambert, Samuel H. Liberman, Otto F. Harting, Thomas F. Farrington and Bernard F. Dickmann, Board of Police Commissioners of the City of St. Louis; John H. Glassco, Chief of Police of the City of St. Louis; A. D. Sheppard, Acting Superintendent of Missouri State Highway Patrol; State Highway Commission of Missouri, and City of St. Louis, a Municipal Corporation, Relators, v. Sam C. Blair, as Judge of the Circuit Court of Cole County
• Court: United States State Supreme Court of Missouri

146 S.W.2d 865

347 Mo. 220

State of Missouri at the relation and to the use of Public Service Commission of the State: Roy McKittrick, Attorney General; A. B. Lambert, Samuel H. Liberman, Otto F. Harting, Thomas F. Farrington and Bernard F. Dickmann, Board of Police Commissioners of the City of St. Louis; John H. Glassco, Chief of Police of the City of St. Louis; A. D. Sheppard, Acting Superintendent of Missouri State Highway Patrol; State Highway Commission of Missouri, and City of St. Louis, a Municipal Corporation, Relators, v. Sam C. Blair, as Judge of the Circuit Court of Cole County

No. 37339

Supreme Court of Missouri

December 3, 1940

Provisional writ quashed.

James H. Linton, Daniel C. Rogers, Covell R. Hewitt, Edgar H Wayman, Harold C. Hanke, Louis V. Stigall and Wilkie B. Cunningham for relators.

(1) Circuit courts are without original jurisdiction of the subject matters included in the Public Service Commission Law, Chapter 33, Revised Statutes 1929, as amended by Laws 1931, pages 304-316, inclusive, because, (a) Section 5, Article XII, Constitution of Missouri, provides that the exercise of the police power shall never be abridged. (b) The General Assembly has vested the Public Service Commission with exclusive power and authority, and it is its duty, in the first instance, within the scope of the statutes governing said Commission, administratively to make findings of fact, interpret the pertinent law and make application thereof to the pertinent facts. State ex rel Sedalia v. Pub. Serv. Comm., 275 Mo. 209; Tranbarger v. Railroad Co., 250 Mo. 55; Chicago & Allton Railroad Co. v. Tranbarger, 238 U.S. 67; St. Louis v. Pub. Serv. Comm., 276 Mo. 526; Southwest Mo Railroad Co. v. Pub. Serv. Comm., 281 Mo. 52; State ex rel. Cirese v. Ridge, 138 S.W.2d 1012; Speas v. Kansas City, 329 Mo. 184, 44 S.W.2d 114; State ex inf. Barker v. Kansas City Gas Co., 254 Mo. 515; State ex rel. Kansas City Pub. Serv. Co. v. Latshaw, 325 Mo. 909, 30 S.W.2d 109; State ex rel. Mo. So. Railroad Co. v. Pub. Serv. Comm., 259 Mo. 713; Pub. Serv. Comm. v. Kansas City P. & L. Co., 325 Mo. 1217, 31 S.W.2d 70; Laclede v. Pub. Serv. Comm., 304 U.S. 398. (2) The circuit courts do not have jurisdiction ". . . to enjoin, restrain or interfere with the Commission in the performance of its official duties." Sec. 5234, R. S. 1929; State ex rel. Pub. Serv. Comm. v. Mulloy, 333 Mo. 282, 62 S.W.2d 730; State ex rel. Anderson v. Witthaus, 340 Mo. 1004, 102 S.W.2d 99; State ex rel. Kansas City Pub. Serv. Co. v. Latshaw, 325 Mo. 909, 30 S.W.2d 111. (3) Circuit courts do not have any authority, under the Declaratory Judgment Act of 1935, to declare rights, statutes or other legal relations of parties within the scope of the subject matter of the Public Service Commission Law, Chapter 33, Articles 1 to 8, inclusive, Revised Statutes 1929, as amended, because The Declaratory Judgment Act is, as a matter of law, not applicable to such subject matter; if the Declaratory Judgment Act, as a matter of law, were applicable to such subject matter, generally, it would constitute an abuse of judicial discretion to proceed under it in the instant case. Declaratory Judgment Act, 2 Mo. Stat. Ann. 1383; Annotation 114 A. L. R. 1367; Declaratory Judgment Act, 2 Mo. Stat. Ann. 1388, sec. 1097f; 16 Ameri. Juris. 280, 281, 295; 50 A. L. R. 48. (4) If no cause of action could be stated, prohibition will lie. Dahlberg v. Fissee, 328 Mo. 213, 40 S.W.2d 610; State ex rel. v. Seehorn, 127 S.W.2d 425; State ex rel. v. Elkin, 130 Mo. 107.

James T. Blair and Barker, Durham & Drury for respondent.

(1) The plaintiffs seek an injunction against the police officers of the city of St. Louis and against the State Highway Patrol to prevent multiple arrests under an alleged void or ambiguous or inapplicable statute. The allegation of ambiguity is admitted by the relators' reply and by formal admission filed in the cause. (2) And the suit seeks a judicial test or construction of the Bus and Truck Act with reference to its application to intracity or local cartage operations in municipalities and their suburban areas by domiciled operators conducting the major part of their business in the municipality of their domicile. (3) The jurisdiction of equity courts to enjoin prosecutions under penal statutes. The gravamen of the petition is found in the allegation that the plaintiffs are being subjected to repeated and vexatious arrests to their irreparable damage under a void, ambiguous or inapplicable statute. (a) Defending against such arrests the plaintiffs would have been privileged to show that the statute did not apply to them, or that it was unconstitutional, invalid or otherwise failed to measure up to a valid and constitutional statute. State v. Bengsch, 170 Mo. 81. (b) The petition raises a judicial question which can be determined only by a constitutional court in which is lodged all judicial power. Art. 6, Sec. 1, Mo. Const. "All the judicial power in this State is by our Constitution vested in certain courts named therein (Art. 6, Sec. 1). The General Assembly has no authority to create any other tribunal and invest it with judicial power." State ex rel. v. Ryan, 182 Mo. 349, 81 S.W. 435. "So we rule that under our Constitution the lawmakers cannot vest purely judicial functions in either a Public Service Commission or in the Railroad and Warehouse Commission." State ex rel. Mo. Pac. Ry. Co. v. Pub. Serv. Comm., 303 Mo. 212, 299 S.W. 445. (c) Absent an adequate remedy at law the courts of justice were obliged to furnish the plaintiffs a remedy. "The courts of justice shall be open to every person and certain remedy afforded for every injury to person, property or character, and that right and justice should be administered without sale, denial or delay." Art. 2, Sec. 10, Mo. Const. "Prosecutions for violation of a criminal statute may be enjoined where the remedy is not adequate and such prosecution would work irreparable injury." (d) The exclusive jurisdiction of the courts over judicial questions cannot be surrendered, notwithstanding the power or duty of an official body to determine its own jurisdiction before undertaking to perform an alleged statutory function. Mo. Const., Sec. 1, Art. VI. "The legislature can neither add to nor take away from courts the jurisdiction given them by the Constitution" State ex rel. v. Locker, 266 Mo. 384, 181 S.W. 1001; State ex rel. v. Tincher, 258 Mo. 1, 166 S.W. 1028; State ex rel. v. Nast, 209 Mo. 708, 108 S.W. 563; In re Sizer, 300 Mo. 369, 254 S.W. 82. "The primary function of the judiciary is to declare what the law is." Drainage Dist. v. Ry. Co., 274 Mo. 440, 178 S.W. 897; Toomey v. Wells, 310 Mo. 696, 297 S.W. 64. (e) The Public Service Commission, being only a ministerial or administrative commission, could not hold the statute unconstitutional. "A ministerial officer cannot declare an act of the legislature unconstitutional and it is the duty of the ministerial officer to obey it whatever views he may entertain of its constitutionality." State ex rel. v. Johnson, 234 Mo. 335, 137 S.W. 595. (f) Even if the Public Service Commission construed the act in a proceeding before it, such construction would not be applicable to a proceeding to enforce the alleged penal provisions of the act, because the Commission would apply a different rule of construction. The Commission would apply a rule of liberal construction, while in a criminal case every presumption would be indulged in favor of the defendant. "Penal statutes must be strictly construed." Lynch v. Railroad Co., 333 Mo. 89. "Penal statute being strictly construed, nothing can be read into it by implication." State ex rel. v. Bridge Co., 340 Mo. 90, 100 S.W.2d 441; State ex rel. v. Allen, 340 Mo. 44, 100 S.W.2d 868. So much of the statute as was enacted in the interest of the public welfare should be liberally construed. State ex rel. v. Pub. Serv. Comm., 327 Mo. 93. In so far as the Bus and Truck Law was a tax measure, however, it was again subject to a strict construction. "The levy must be clearly authorized by statute and construed strictly against the taxing authorities." The Bus and Truck Act, being in derogation of the common law and acting as a restraint upon the freedom of the individual, it is necessary that it be given a strict construction in determining who are and who are not brought within the terms of the statute. Rozelle v. Harmon, 103 Mo. 333, 15 S.W. 432; Perry v. Strawbridge, 209 Mo. 621, 108 S.W. 641; Martin v. Claxton, 308 Mo. 314, 274 S.W. 77. (g) The party cannot take the benefits of an unconstitutional law and afterwards rely upon its constitutionality. St. Louis v. Ry. Co., 248 Mo. 10, 154 S.W. 55; Orthwein v. Germania Life Ins. Co., 261 Mo. 650, 170 S.W. 885; Folk v. St. Louis, 250 Mo. 116, 157 S.W. 71; Greene County v. Lydy, 263 Mo. 77, 172 S.W. 376; Regan v. Dickmann, 207 S.W. 792.

Charles A. Orr and Maurice Weinberger for Team & Motor Truck Owners Assn. of Greater Kansas City, amicus curiae; J. H. Tedrow for Chamber of Commerce of Kansas City, amicus curiae; M. W. Borders for Kansas City Stock Yards Company, amicus curiae.

(1) Circuit courts have original jurisdiction of the subject matter of plaintiffs' petition in the action for injunctive relief. State ex rel. Pub. Serv. Comm. v. Mulloy, 333 Mo. 282, 62 S.W.2d 730; State ex rel. Anderson v. Witthaus, 340 Mo. 1004, 102 S.W.2d 99; Park Transportation Co. v. Mo. State Highway Comm., 332 Mo. 592, 60 S.W.2d 388; State ex rel. Rutledge v. Pub. Serv. Comm., 316 Mo. 233, 289 S.W. 785. (2) The Public Service Commission has not been restrained in the performance of its official duties. The Circuit Court of Cole County, however, could properly exercise power to restrain such duties. Ward v. Pub. Serv. Comm., 341 Mo. 227, 108 S.W.2d 136.

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