State ex rel. Carroll v. Campbell

• Decision Date: 03 May 1887
• Citation: 25 Mo. App. 635
• Parties: STATE EX REL. RICHARD CARROLL, v. JAMES T. CAMPBELL ET AL., Respondents.
• Court: Missouri Court of Appeals

25 Mo.App. 635

STATE EX REL. RICHARD CARROLL, v. JAMES T. CAMPBELL ET AL., Respondents.

Court of Appeals of Missouri, St. Louis.

May 3, 1887

MOTION for attachment.

Motion sustained.

J. B DENNIS, with whom are DYER, LEE & ELLIS, for the relator When the appeal was taken and the supersedeas bond given in the court below that court lost all control and jurisdiction over the case and had no power to make any orders therein except to correct its own record.DeKalb County v Hickson,44 Mo. 341;Bell v.Meek, 20 Mo. 358;Ladd v. Couzins,35 Mo. 513;Stewart v. Stringer,41 Mo. 400;TheState v. Lubke, 15 Mo.App. 172.Where a temporary injunction has been granted in the circuit court, and, upon final hearing, the injunction is dissolved and bill dismissed, an appeal with a supersedeas bond operates to continue the restraining order in full force while the case is pending in the appellate court.TheState v. Lewis,76 Mo. 370;Lewis v. Leahey,14 Mo.App. 566;Yokum v. Moore,4 Bill. 221;Balkum v. Huper,50 Al. 372;Turner v. Scott,5 Rand. 332;Williams v. Powers,48 Tex. 141;TheState v. Lubke, 15 Mo.App. 172.

GEO. D. REYNOLDS and FRANK E. BURROUGH, for the respondents: An appeal does not reinstate a dissolved injunction.High on Inj. 423, 1076; Kerr on Inj. 635.

OPINION

LEWIS P. J.

The relator, claiming an exclusive ferry privilege under a license from the municipal authorities of the city of Cape Girardeau, commenced suit for a perpetual injunction against the defendants, to restrain them from continuing to operate a ferry within the limits, on the banks of the Mississippi river, which were covered by the relator's franchise.A temporary injunction was granted, after which there was a change of venue from the Cape Girardeau to the Madison circuit court.In the latter court, the cause was heard upon its merits under a motion to dissolve the injunction, whereupon the motion was sustained, and the bill dismissed.The relator took an appeal to this court, and gave a bond, which was declared, by order of the circuit court, to operate a supersedeas.The appeal was perfected on October 5, and the transcript was filed in this court on October 23, 1886.On October 26, 1886, the present information was filed, in which, after a recital at length of the proceedings above mentioned, it is charged that the defendants, Campbell and Houck, together with one Albert Schultz, who is their servant, and who is summoned as a party hereto, " did, on or about Monday, the eighteenth day of October inst., in contempt of the power, jurisdiction, and authority of this court, commence running and operating their said ferry-boat, ‘ Rosalie Smoot,’ and did commence doing a general ferrying business by transporting passengers and freight from the city of Cape Girardeau, Missouri, and have ever since been, and threaten still to continue, so to do, to the great damage of your relator herein, to-wit, in the sum of twenty dollars per day, each day they so run, and in open and flagrant contempt of the authority of this court."The information concludes with a prayer that the defendants be attached for contempt, and that such further orders be made as will compel obedience to said injunction, until a hearing and determination of the matters in controversy.

In response to a notice to show cause against the prayer of the information, the defendants, Campbell and Houck, file their return, setting up several matters of defence, to all of which the plaintiff demurs, for insufficiency in law.As the return contains, presumably, everything that the defendants can allege in their defence against this proceeding, the return and the demurrer will be so considered by us as to dispose of all the matters involved in the present application.

The return admits that the defendants have been operating their ferry, as charged, ever since about the twenty-ninth day of September, 1886, when the temporary injunction was dissolved by the circuit court, as appears in the record.It is then averred that this court has no jurisdiction of the original cause, or of this proceeding, because the ferry license, granted to the plaintiff by the municipal authorities of Cape Girardeau, was an attempt to grant special and exclusive rights and privileges, and was, therefore, in violation of section 53, article 4, of the constitution of this state; wherefore, the supreme court has exclusive appellate jurisdiction of the matter in controversy, and of all proceedings growing out of the same.The constitutional provision referred to, declares that: " The general assembly shall not pass any local or special law * * * granting to any corporation, association, or individual, any special or exclusive right, privilege, or immunity."

This court held in St. Louis v. Ferry Company(14 Mo.App. 216), that the granting of a ferry license, by a municipal corporation, under its charter, was not a local or special law, within the meaning of this constitutional provision, and was not, in any manner, affected by it.We see no occasion for receding from the views ex pressed in that case.The decision stamps this feature of the return as a nullity, and unworthy of serious consideration.

The next point made by the return is, " that the matter in dispute relates to commerce between the states of Missouri and Illinois, and is one that presents a question of the construction of the constitution of the United States."The decision of this court, already referred to, shows that no such question is involved in the granting or withholding of a ferry license by a municipal corporation, and that no provision of the federal constitution has anything to do with such questions as are involved in this proceeding, or in the proceeding to which this is incidental.This feature of the return is also unavailable to the defendants for any purpose.

The return avers that, on the face of the record, it appears that the case is not one in which an injunction should ever have issued, and that the relator was never...