State ex rel. City of Mansfield v. Crain

• Decision Date: 28 March 1957
• Docket Number: No. 7557,7557
• Citation: 301 S.W.2d 415
• Parties: STATE ex rel. CITY of MANSFIELD, Missouri, and G. C. Freeman, Mayor, and Tom Abrams, Joe Bottomly, Dennis Lynch and E. R. Smith, Aldermen of the City of Mansfield, Missouri, Petitioners, v. Honorable Joe C. CRAIN, Judge of the Circuit Court of Wright County, Missouri, and of the 31st Judicial Circuit, Respondent.
• Court: Missouri Court of Appeals

Page 415

301 S.W.2d 415

STATE ex rel. CITY of MANSFIELD, Missouri, and G. C.

Freeman, Mayor, and Tom Abrams, Joe Bottomly,

Dennis Lynch and E. R. Smith, Aldermen

of the City of Mansfield, Missouri, Petitioners, v. Honorable Joe C. CRAIN, Judge of the Circuit Court of Wright

County, Missouri, and of the 31st Judicial

Circuit, Respondent.

No. 7557.

Springfield Court of Appeals, Missouri.

March 28, 1957.

Wayne T. Walker, B. H. Clampett, Walker, Daniel, Clampett and Rittershouse, Springfield, for petitioners.

E. C. Curtis, Farrington & Curtis, Springfield, for respondent.

PER CURIAM.

We issued preliminary writ of prohibition in restraint of an injunction suit brought by Se-Ma-No Electric Cooperative (hereinafter called company) against the City of Mansfield and certain persons designated as its mayor and board of aldermen (hereinafter referred to collectively as city). The proceeding under attack and now under restraint was commenced by a petition which declared that the company was the owner of a franchise (dated May 1942 and to expire in twenty years) to maintain and operate an electrical distribution system within the city; also that the company was the holder of two contracts (both dated November 1950 and to extend for ten years), one for the operation of a street lighting system and the other for furnishing of electrical energy for the pumps of the city's water system; that in reliance upon the franchise and contracts 'and in reliance upon the further assurance and agreement of the duly elected officials of the defendant City * * * that said city would not compete with plaintiff during the term of said franchise and contracts' the company purchased and thereafter improved the distribution system at great expense. The petition does not state, nor do the attached exhibits show, any express agreement that the franchise is exclusive, or that the city expressly agreed not to compete, but it does plead that by the execution of said franchise and contracts the city impliedly agreed not to compete. The petition then recited that the residents of the city had voted bonds for the construction of an electrical transmission system, that the city officials had contracted for the sale of such bonds and authorized contracts for construction of such system and that, unless restrained, the city would enter into direct competition with the company. It specifically pleaded impairment of contract, the violation of Art. I, sec. 10, Constitution of the United States, and Art. I, sec. 13, Constitution of Missouri 1945, V.A.M.S., and the taking of property without due process in violation of Art. XIV, sec. 1, Amendments to the Constitution of the United States, and Art. I, sec. 10, Constitution of Missouri.

On June 8, 1956, the company gave notice that it would on June 11 apply for a temporary injunction, and on June 11 the court granted temporary injunction restraining the city from proceeding with sale of bonds or construction of the proposed system until further order. Thereupon the city applied to this court and the preliminary writ was issued.

The grounds stated in the petition for this writ were that the company's petition 'wholly fails to state a claim upon which relief can be granted; that said petition wholly fails to state grounds for an injunction,' and that the judge of said court 'was and is without jurisdiction to enjoin or restrain petitioners * * * in the manner and particulars mentioned herein,' and that he was acting in excess of his jurisdiction. The return to the writ in effect is an assertion of jurisdiction and a denial that the petition for injunction fails to state a cause of action. It further charges that no effort to attack the petition was made in the court of first instance and asserts preclusion of relators in this court for such reason. The reply to this return admits that no effort was made to attack the petition for injunction but denies that such failure precludes the city; and again denies that the 'petition for injunction stated (or can be amended to state) grounds for injunctive relief * * *.'

We first inquire into our jurisdiction. Does a court of appeals have jurisdiction to issue and enforce prohibition against proceeding on a petition wherein a constitutional question is directly raised; (or any other question within the exclusive appellate jurisdiction of the supreme court as defined in sec. 3, Art. V, Constitution 1945).

Clearly we had no such jurisdiction prior to the Constitution of 1945. State ex rel. Blakemore v. Rombauer, 101 Mo. 499, 14 S.W. 726; State ex rel. Hazel v. Watkins (in banc), 295 Mo. 648, 245 S.W. 1057; State ex rel. Ghan v. Gideon, Mo.App., 119 S.W.2d 89; State ex rel. Duraflor Products Co. v. Pearcy, 325 Mo. 335, 29 S.W.2d 83, 88; State ex rel. Wurdeman v. Reynolds, 275 Mo. 113, 204 S.W. 1093. But these holdings were under the Constitution of 1875, Amendment of 1884, Art. VI, sec. 5, which provided [101 Mo. 499, 14 S.W. 727]:

"In all causes or proceedings reviewable by the supreme court, writs of error shall run from the supreme court * * * and the supreme court shall have exclusive jurisdiction of such writs of error and appeals, and shall in all such cases exclusively exercise superintending control over such trial courts."

Thus the italicized clause gave to the supreme court exclusive jurisdiction of superintending control over trial courts where an appeal would be within the exclusive jurisdiction of the supreme court. The above cited cases emphasize that clause in disposing of the question of superintending control. However, sec. 4, Art. V, of the Constitution of 1945 contains no such limitation. It provides:

'The supreme court, courts of appeals, and circuit courts shall have a general superintending control over all inferior courts and tribunals in their jurisdictions, and may issue and determine original remedial writs.'

The issuance of original remedial writs is not an appellate process, hence limitations solely on the appellate jurisdiction, as such, do not in themselves affect the supervisory process, which represents the application of judicial policy. 14 Am.Jur., Courts, sec. 266, p. 462; 21 C.J.S., Courts, Sec. 312, p. 563; High's Extraordinary Legal Remedies, 3rd ed., sec. 785a, p. 742; see State ex rel. State Highway Commission v. McDowell, 236 Mo.App. 304, 152 S.W.2d 223(5); see also 112 A.L.R. 1365 et seq.; State of Wisconsin ex rel. Fourth National Bank v. Johnson, 103 Wis. 591, 79 N.W. 1081, 51 L.R.A. 33, et seq.

In State ex rel. Duggan v. Kirkwood (in banc), 357 Mo. 325, 208 S.W.2d 257, loc. cit. 262, 2 A.L.R.2d 216, decided in 1948, the court said:

'Respondent also contends that we do not have jurisdiction because it is not shown with certainty that the amount involved is in excess of $7,500. Our jurisdiction is invoked under Section 4, Article V of the Constitution which gives us superintending control over circuit courts and states that we may issue and determine original remedial writs. Therefore, it is not necessary that over $7,500 be involved.'

Since the section above referred to, in the same and equal language, gives the courts of appeals the same supervisory power over courts inferior to them, it is difficult to see why our jurisdiction does not obtain. It may well be, however, that the courts of appeals in this state may choose to adopt the well-established practice of the district courts of appeals in California (where the constitution likewise provides for equal and concurrent jurisdiction) in exercising great forbearance in the issuance of writs in certain cases, not because of 'questions of appellate jurisdiction and of the nature of the action,' but as a matter of judicial policy and practice, which is not to intrude upon the court which has time-hallowed jurisdiction of such cases on appeal. ¹

However, we are of the opinion that courts of appeals now have concurrent jurisdiction with the supreme court in exercising supervisory control over all inferior courts within the territorial jurisdiction of the respective courts of appeals, and may issue remedial writs to accomplish that control. We construe the clause, 'in their jurisdictions,' found in sec. 4, Art. V, to mean their territorial jurisdictions.

Respondent urges that our writ should not issue because relators' petition is insufficient, in that it does not specifically allege that the injunction petition fails to state a cause of action and cannot be amended to state a cause of action. Certain allegations of the petition for prohibition and the reply to the return are quoted supra. The fundamental basis of the cause of action stated in the injunction petition is to the effect that the City of Mansfield, by the execution of the franchise now owned by Se-Ma-No, and by executing the street lighting and pumping station contracts, impliedly agreed not to compete with the company in the transmission and distribution of electrical energy within said city for the term and duration of said franchise and contracts. The injunction petition does not allege, nor do the attached exhibits show, any express agreement that the franchise is exclusive, or that the city expressly agreed not to compete with Se-Ma-No. Under such circumstances, there can be no implied limitation upon the right of the City of Mansfield to construct and operate a power plant. Cases specifically so holding are Memphis Electric Light, Heat and Power Co. v. City of Memphis, 271 Mo. 488, 196 S.W. 1113; City of Joplin v. Southwest Missouri Light Co., 191 U.S. 150, 24 S.Ct. 43, 48 L.Ed. 217; Kansas City Power & Light Co. v. Town of Carrollton, 346 Mo. 802, 142 S.W.2d 849. These cases review many other authorities on the subject.

The injunction petition also contains a general allegation that it relied upon the assurances and agreement of the duly elected officials of the City of Mansfield that said city would not compete with Se-Ma-No during the term of the franchise and contracts. It is not alleged or...