State ex rel. Bracey v. Ossing
| Decision Date | 25 November 1924 |
| Docket Number | 25658 |
| Citation | 266 S.W. 322,305 Mo. 441 |
| Parties | THE STATE ex rel. ROBERT BRACEY v. EWING G. OSSING, Judge of Circuit Court of City of St. Louis |
| Court | Missouri Supreme Court |
Preliminary rule discharged.
Douglas W. Robert, Dwight D. Currie, Wm. L. Sturdevant and Guy A Thompson for relator.
(1) The circuit court has no power to make or enforce a rule which is in conflict with the Constitution or statutes, and if it does make such a rule and refuses to proceed with the trial of a case until a party litigant complies with the void rule mandamus will lie. The writ has been issued to compel inferior courts to proceed in cases, pending before them, in the face of rules which this court held unconstitutional. State ex rel. Plummer v. Gideon, 119 Mo. 94; State ex rel. v. Withrow, 135 Mo. 376; State ex rel. Angold v. Utz, 236 S.W. 386. It is elementary law that mandamus is the remedy to compel inferior courts to perform some act which it is required to perform and which it refuses to perform. Hargadine-McKittrick Co. v Garesche, 227 S.W. 824; State ex rel. v. Grimm, 220 Mo. 483; State ex rel. v. Homer, 249 Mo. 58; State ex rel. v. Cockrell, 280 Mo. 269. Rules must not be arbitrary, unreasonable, contrary to the statute, nor of a nature to deprive a party of legal rights. (2) Rule 47-B provides for an unreasonable search of the relator's home, and violates the security of his person. The investigator is required to visit and inspect the home of the plaintiff. This is a species of espionage not tolerated in this country. Mo. Constitution, art. 2, sec. 11; Ex parte Brown, 72 Mo. 94. (3) Rule 47-B deprives the relator of due process of law. No other circuit in the State has such a rule or system, and the relator will have to submit his case, and have it tried in a different manner than will litigants in other counties. The general statutes, Section 1801 et seq., prescribe how divorce cases shall be tried in all courts of the State, and if relator cannot try his in the same way persons of other counties try theirs, he is denied due process of law and equal protection of the law. State v. Guerringer, 265 Mo. 408. (4) The Constitution vests the legislative power in the General Assembly. The Assembly has enacted laws on the subject of divorce, Sec. 1801 et seq., R. S. 1919. Rule 47-B provides for matters directly contrary to the statutes, and it also adds to the statutes. There is no authority in law for the appointment of "investigators" by the Courts of Domestic Relations. There is no authority in the statutes for appointment of "investigators," "supervising" or otherwise, by that name. The only provisions for the appointment of persons to assist either branch of these courts are contained in the Juvenile Court law, and in these statutes are provisions for the appointment of a probation officer and deputy probation officers, but nowhere is mentioned the name or title "investigator," or "supervising investigator." By the adoption of this rule the circuit court has exceeded its jurisdiction and undertaken to legislate, a function belonging solely to the General Assembly.
Conway Elder, Vital W. Garesche and W. W. Henderson for respondent.
(1) The relator asks this court to compel, by its writ of mandamus, the respondent to do and perform what he had already done prior to the application of the writ. This court will not decide a moot court question in an action of mandamus. State ex rel. v. Associated Press, 159 Mo. 410; State ex rel. Burton v. Bagby, 288 Mo. 488; 18 Ruling Case Law, sec. 53, p. 138; State ex rel. Hixon v. Lafayette County Court, 41 Mo. 39; 26 Cyc. 147. (2) Mandamus will not go to compel the discharge of a doubtful duty. 26 Cyc. 163; State ex rel. v. Buehler, 90 Mo. 560; State ex rel. Gibson, 187 Mo. 553. (3) The court will not issue a discretionary writ for the mere purpose of determining an empty and barren technical right in its favor. State ex rel. Star Publishing Co. v. Associated Press, 159 Mo. 410; State ex inf. Barker v. Kansas City Gas Co., 254 Mo. 515. (4) The existence of another adequate legal remedy is always a bar to relief by mandamus. State ex rel. Faires v. Buehler, 90 Mo. 570; Dunklin County v. District Court, 23 Mo. 449; Blecker v. Law Commissioners, 30 Mo. 111. Relator, without mandamus, will have his trial and has the right of appeal if error is committed. (5) In a divorce proceeding there are four parties involved, to-wit, the plaintiff, defendant, the State and the child or children. Milster v. Milster, 200 Mo.App. 606; 2 Bishop, Marriage and Divorce, sec. 489. (6) The parties, plaintiff and defendant, are represented by their respective counsel. The judge of the court in a large degree takes care of the interests of the State and the children. Moore v. Moore, 41 Mo.App. 176; Meredith v. Krauthoff, 191 Mo.App. 149. The welfare of the child is superior to the claim of either parent. Meredith v. Krauthoff, 191 Mo.App. 170; English v. English, 32 N.J.Eq. 738; Kune v. Miller, 40 Wash. 125; 14 Cyc. 805; 9 Am. & Eng. Ency. Law (2 Ed.) 867, 868; Umlauf v. Umlauf, 128 Ill. 378. And in determining where the custody of a child shall go, the acts and attitude of the parents toward each other, the causes leading to the divorce, their treatment of each other, the character of the home, and the neighborhood in which the child is to be kept, and similar matters, are all material and admissible in evidence as bearing upon the question of the fitness of the respective parents to have the custody of their child. In re pray, 60 How. Pr. 194; Welch v. Welch, 33 Wis. 534; Beene v. Beene, 64 Ark. 518; Williams v. Crosby, 118 Ga. 296; Miner v. Miner, 11 Ill. 43; People ex rel. v. Brooks, 35 Barb. (N. Y.) 85. To the end of fully performing its functions, a court may summon witnesses and elicit testimony on its own motion. Kuhl v. Kuhl, 140 S.W. 949.
Original proceeding in mandamus. On the pleadings and by stipulation, the conceded facts are as follows:
Respondent is one of the judges of the Circuit Court of the City of St. Louis; the division over which he presides is known as Division No. 15 of the Circuit Court and also as Division No. 1 of the Court of Domestic Relations. There is in force, or was at the time of the occurrences complained of, a rule promulgated by the judges of the St. Louis Circuit Court sitting in general term known as Rule 47-B. This rule provides, in substance, that in causes pending in either of the two divisions of the Court of Domestic Relations wherein either party prays for a divorce or for the annullment of a marriage or for separate maintenance, and wherein the custody, support and welfare of any minor child is involved, a probation officer of the court shall make an investigation into the status and conditions of the parties to such cause, with especial reference to the child or children so involved; that such investigation shall be by informal, personal visit, interview and inspection, as far as practicable, and without administering oaths or taking written statements from any party to or person interested in such cause so investigated; that the result of such investigation shall be reported in writing by the person making the same on a blank printed card, and the report filed with the clerk of the division in which the cause is pending at least ten days before the trial day, and be open to the inspection of counsel for both parties thereto; and that "at the trial of the cause said report shall not be read in evidence, or read or considered as evidence by the court, but the investigator making the same may be called as a witness by either party, or by the court, and when so called shall give testimony, under oath and subject to cross-examination, as any other witness, and subject to all the rules of evidence and all objections as to competency, materiality and relevancy of his testimony, using said report merely as a memorandum of the witness made at the time for the purpose of refreshing the memory of the witness in so testifying."
In making the investigation prescribed by the rule it is the custom of the probation officer, among other things, to make an examination of the home wherein the minor child or children of the parties to the divorce proceedings are housed and kept, with especial reference to the moral surroundings, sanitation and neighborhood. The officer's report, however, "is never considered by the court as being evidence, nor read by the court until the evidence in the cause is being presented, and then only for the purpose of furnishing the court information as to whether additional witnesses, whose names amy appear upon such written report, should be summoned and examined in open court for the purpose only of determining the question of the best interests and future welfare of the minor child or children involved in the cause then before the court."
Relator is the plaintiff in an action for divorce instituted by him against his wife, Nettie Bracey, and in which he also seeks to have awarded him the custody of their minor child, Doretta Bracey. The cause came on for trial in Division No. 1 of the Court of Domestic Relations, May 14, 1924. Defendant had theretofore filed an answer, but made no further appearance. Plaintiff annouced ready and the trial was commenced. During the course of his examination as a witness in his own behalf the following occurred:
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