State ex rel. Aquamsi Land Co. v. Hostetter

• Decision Date: 07 February 1935
• Docket Number: No. 33775.,33775.
• Parties: STATE OF MISSOURI at the Relation of AQUAMSI LAND COMPANY, Relator, v. JEFFERSON D. HOSTETTER, WILLIAM DEE BECKER and EDWARD J. McCULLEN, Judges of the St. Louis Court of Appeals, and FIRST NATIONAL BANK OF CAPE GIRARDEAU.
• Court: Missouri Supreme Court

79 S.W.2d 463

STATE OF MISSOURI at the Relation of AQUAMSI LAND COMPANY, Relator, v. JEFFERSON D. HOSTETTER, WILLIAM DEE BECKER and EDWARD J. McCULLEN, Judges of the St. Louis Court of Appeals, and FIRST NATIONAL BANK OF CAPE GIRARDEAU.

No. 33775.

Supreme Court of Missouri.

Court en Banc, February 7, 1935.

Certiorari.

WRIT QUASHED.

Giboney Houck and Brandom Hope for relator.

The questions of whether the State is a necessary party and whether certiorari is proper for the purpose of questioning the constitutionality of the common pleas court are, we think, completely answered by relator's reply brief. There we show that it is the established rule in Missouri that certiorari is proper and that there can be "no de facto officer unless there was a legal office to fill." State ex rel. Allen v. Trimble, 317 Mo. 751, 297 S.W. 378; Norton v. Shelby County, 118 U.S. 425, 6 Sup. Ct. 1121, 30 U.S. 187; Ex parte Snyder, 64 Mo. 62. The rule in Ex parte Snyder that there can be no de facto judge unless there is a de jure court has been followed consistently in Missouri. (See the list of some twenty cases in Shepard's Missouri Citations in which this court alone, not counting the courts of appeals and decisions of other states, cited and followed this rule.) In Ex parte Bedard, 106 Mo. 627, this court, following Ex parte Snyder, held that habeas corpus was the proper remedy, where there was no jurisdiction and the legal proceedings were a nullity. In Ex parte Renfrow, 112 Mo. 598, it was held, in following Ex parte Snyder, that the question whether a court is constitutional must be decided by comparing the act of the Legislature creating the court with the Constitution, without giving any consideration to extrinsic matter or evidence. Likewise, the rule of this court, that its ruling, upon a motion to transfer a case to the Court of Appeals, is not res adjudicata if lack of jurisdiction is later discovered, has been consistently followed. State ex rel. v. Hyde, 317 Mo. 714, 296 S.W. 775; State ex rel. v. American Surety Co., 210 S.W. 428; Bowles v. Troll, 262 Mo. 377, 171 S.W. 326; State v. Graham, 295 Mo. 695, 247 S.W. 194, transferred to Court of Appeals, 250 S.W. 925, transferred back to Supreme Court and decided in 301 Mo. 272, 256 S.W. 770.

Benson C. Hardesty and Rush H. Limbaugh for respondents.

(1) The abstract of the record shows that the judgment and proceedings of the St. Louis Court of Appeals have been rendered pursuant to orderly appeal from the Cape Girardeau Court of Common Pleas and also pursuant to the final order and judgment of this court. (2) The legality of the existence of the Cape Girardeau Court of Common Pleas, even if it should be deemed merely a de facto court, cannot be questioned in this collateral proceeding. Mo. Const. 1820, Sec. 1, Art. V; Laws 1851, p. 201; R.S. 1929, secs. 14500-14539; State ex rel. Allen v. Trimble, 317 Mo. 751, 297 S.W. 378; State ex rel. Bentley v. Reynolds, 89 S.W. 877, 190 Mo. 578; State ex rel. Smith v. Dykeman, 134 S.W. 120, 153 Mo. App. 416; State ex rel. Ruppel v. Wiethaupt, 162 S.W. 163, 254 Mo. 319; 15 C.J., pp. 874-875; State ex rel. v. Bailey, 118 N.W. 676, 19 L.R.A. (N.S.) 775; Burt v. Railroad Co., 31 Minn. 472, 18 N.W. 285; Kayser v. Bremen, 16 Mo. 88; State ex rel. Read v. Weatherby, 45 Mo. 17; St. Louis v. Shields, 62 Mo. 247; Black v. Early, 208 Mo. 303; Franklin, etc., Institution v. Board of Education, 75 Mo. 408; Fredericktown v. Fox, 84 Mo. 59; Thornton v. Bank, 71 Mo. 221; Shewalter v. Pirner, 55 Mo. 218; Land v. Coffman, 50 Mo. 243; State v. Fuller, 96 Mo. 165; State v. Brown, 71 Mo. 454; State v. Rich, 20 Mo. 393; State v. Wiley, 109 Mo. 439; State v. Watts, 111 Mo. 553; State v. Renfrow, 111 Mo. 589; Ex parte Renfrow, 112 Mo. 591; State ex rel. McCaffery v. Aloe, 152 Mo. 466, 54 S.W. 494, 47 L.R.A. 393; State ex rel. Blair v. Center Creek Mining Co., 262 Mo. 490, 171 S.W. 359; State ex inf. Killam v. Colbert, 273 Mo. 198, 201 S.W. 52. (3) Furthermore, even a de facto court's judgments, when rendered prior to its existence being adjudged void by direct proceedings, are valid and conclusive. 33 C.J. 1070; Keene v. McDonough, 8 Pet. 308; Burt v. Railroad Co., 31 Minn. 472, 18 N.W. 285; Kayser v. Bremen, 16 Mo. 88; State v. Peyton, 32 Mo. App. 522; Bouldin v. Ewart, 63 Mo. 335; Kane v. McCown, 55 Mo. 189. (4) But even under a direct proceeding for testing the legal existence of the Cape Girardeau Court of Common Pleas that court's existence would be adjudged not to be abolished nor in any wise impaired by Amendment No. 21 in question. (a) This Amendment No. 21 (Laws 1925, p. 412) is a schedule submitted and adopted merely for the usual purpose of schedules, stated in the treatise on Constitutional Law in 12 Corpus Juris, page 696, to be for the "purpose of putting the provisions of the new Constitution into effect." (b) A consideration of this Amendment No. 21 in connection with the twenty other amendments proposed along with it and an examination of the proceedings of the Constitutional Convention when said Amendment No. 21 was under consideration will show the absence of any intention to abolish common pleas courts. 12 C.J., pp. 701-702, 711-712; Journal of the Constitutional Convention, 1922-1923 (263rd and 264th days, October 2 and 3, 1923); Laws 1925, pp. 408-413; Sec. 5 of schedule to Constitution 1875 (R.S. 1919, p. 181). (c) Since the adoption of such new schedule on February 26, 1924, common pleas courts, both by legislative and executive constructions of the Constitution, as amended, have been deemed to be and remain in continued existence. R.S. 1929, secs. 14500-14539; 12 C.J. 714-715; R.S. 1919, pp. 180-182; Laws 1925, pp. 412-413. (d) Construing this Amendment No. 21 in question as effecting the abolition of common pleas courts would be contrary not only to the settled construction adopted by said convention, itself, and sanctioned by settled executive and legislative construction ever since, but it would be contrary to the rule of construction universally applied by this court and other courts of last resort to the effect that repeals by implication are always disfavored. Ferrill v. Keel, 151 S.W. 273; Tackett v. Vogler, 85 Mo. 483; Commonwealth v. Hudson, 11 Gray, 65; Lackland v. Walker, 151 Mo. 262; Davidson v. Schmidt, 256 Mo. 18, 164 S.W. 577; St. Louis v. Hollrah, 175 Mo. 85; Sec. 4, Amend. No. 21, Mo. Const. (Laws 1925, p. 412); R.S. 1929, secs. 14500-14539. (5) Likewise, in any direct test proceeding brought for the purpose, it would be held that the Cape Girardeau Court of Common Pleas is properly presided over by a common pleas judge instead of a circuit judge. R.S. 1929, sec. 1941; Sec. 5 of schedule to Mo. Const. (R.S. 1919, p. 181); Laws 1879, p. 87; Laws 1883, p. 72; R.S. 1929, secs. 14503, 14549, 14565, 14589; In re Allen's Estate, 271 S.W. 755, 307 Mo. 674; State v. Ebbs, 89 Mo. App. 95; State ex rel. Monier v. Crawford, 262 S.W. 341, 303 Mo. 652; De Hart v. School Dist., 263 S.W. 242, 214 Mo. App. 651; Gilkeson v. Railroad Co., 121 S.W. 138, 222 Mo. 173; R.S. 1889, pp. 2219-2228; R.S. 1899, pp. 2579-2589; R.S. 1909, secs. 4232-4266; R.S. 1919, secs. 13680-13717; R.S. 1929, secs. 14500-14539; Laws 1909, p. 419; Laws 1927, p. 144; Ex parte Carey, 267 S.W. 806, 306 Mo. 287; Schawacker v. McLaughlin, 139 Mo. 333.

Oliver & Oliver, Finch & Finch, Knehans & Knehans and Dearmont, Spradling & Dalton, amici curiae.

If the reasonable, legal mind in the light of the history of the various Missouri Constitutions could possibly have any doubt about the interpretation and effect of the language used in the submission and adoption of the Schedule of 1924, such doubt would have to be based on some species of implication for, certainly on the surface, there is no intention shown to repeal the Schedule of 1875 or to abolish the common pleas courts provided for therein. But, there is no principle of law better settled in this State and elsewhere than the doctrine against any repeal by implication. "Implied repeals are not favored." United States v. Noce, 268 U.S. 613, 69 L. Ed. 1119; Frost v. Wenie, 157 U.S. 46, 39 L. Ed. 619; United States v. Greathouse, 166 U.S. 137; Stevens v. Biddle, 298 Fed. 212; Bookbinder v. United States, 287 Fed. 792; United States v. Jones, 109 U.S. 513, 27 L. Ed. 1017.

Charles E. Rendlen, Ben E. Hulse, Ezra T. Fuller, Harry Carstarphen, Ben Ely, Jr., and Robert L. Jackson, amici curiae.

(1) There was no direct repeal of the 1875 schedule by that adopted in 1924. The only pretense at such direct repeal is to be found in the language printed on the official ballot to-wit: "To substitute a revised and amended schedule for the schedule of the present Constitution; it makes provisions for carrying of proposed amendments into effect if adopted and for continuing in force existing laws pending the changes." (Italics ours.) Mr. Justice BREWER in Cornell v. Coyne, 192 U.S. 418, 48 L. Ed. 509. Mr. Justice DAY in Strathearn Steamship Co. v. Dillon, 252 U.S. 348, 64 L. Ed. 611. PHILLIPS, J., in Rider v. United States, 149 Fed. 164, 79 C.C.A. 114. (2) Nor did the Schedule of 1924 repeal that of 1875 by implication. (a) Repeals by implications are not favored by or allowed except in those cases in which the legislative intent is plain and unambiguous. State ex inf. Major v. Amick, 247 Mo. 271, 152 S.W. 591; Raymore v. Special Road District, 212 Mo. 551, 111 S.W. 472; State ex rel. Chillicothe v. Gordon, 233 Mo. 383, 135 S.W. 929; State ex rel. Holliday v. Rinke, 140 Mo. App. 645, 121 S.W. 159; Ferrill v. Keel, 105 Ark. 380, 151 S.W. 269; Jenner v. Shope, 205 N.Y. 66, 98 N.E. 325. All of the above cases, with the exception of Ferrill v. Keel, involved the alleged implied repeal of statutes. However, if a court should hesitate long before holding that a statute had been impliedly repealed by another it should a fortiori hesitate even longer in holding that a constitutional provision had been so repealed. (b) A new...