State ex rel. Fitzgerald v. Missouri Com'n for the Blind
| Decision Date | 02 April 1932 |
| Docket Number | 30090 |
| Citation | 48 S.W.2d 872,329 Mo. 1216 |
| Parties | State ex rel. Daniel W. Fitzgerald v. Missouri Commission for the Blind, Plaintiff in Error |
| Court | Missouri Supreme Court |
Appeal from Stoddard Circuit Court; Hon. W. S. C. Walker Judge.
Peremptory and alternative writ quashed.
Raymond J. Lahey and A. T. Welborn for plaintiff in error.
(1) Section 4 of the Blind Pension Act, now Section 8896, R. S 1929, provides that whenever it shall become known to the Commission that any person whose name is on the Blind Pension Roll is no longer qualified to receive a pension, after reasonable notice mailed to such person at his or her last known residence address, such fact shall be certified to the State Auditor and the name of such person shall be stricken from the Blind Pension Roll. (2) Mandamus issues only to enforce a legal right which is clear and complete and such right must be shown by the pleadings. Williams v. Judge of Cooper County Court of Common Pleas, 27 Mo. 225; Dunklin County v. Dunklin County Dist. Court, 23 Mo 449; Mansfield v. Fuller, 50 Mo. 338; State v. Lesueur, 136 Mo. 452; State v. Thomas, 245 Mo. 65, 149 S.W. 318; Adair Drainage Dist. v. Ry. Co., 280 Mo. 11, 217 S.W. 70; State v. Dickey, 280 Mo. 536, 219 S.W. 363; State v. Holman, 301 Mo. 333, 256 S.W. 776; State v. Brown, 172 Mo. 274, 72 S.W. 68. (3) Mandamus will not lie to control or review the exercise of the discretion of any board or commission unless it clearly appears that there has been an abuse of discretion. State v. Bollinger, 219 Mo. 204, 117 S.W. 1132; State v. St. Louis, 158 Mo. 505, 59 S.W. 1101; State v. Cramer, 96 Mo. 75, 8 S.W. 788; State v. Wilson, 49 Mo. 146; State v. Holman, 264 S.W. 908, 305 Mo. 195; State v. Stone, 269 Mo. 334, 190 S.W. 601.
Henry M. Phillips and J. W. Farris for defendant in error.
(1) The fact that the judgment of the Circuit Court of Stoddard County, Missouri, rendered on the 2nd day of October, 1924, which was sought to be enforced by mandamus recites among its other findings, "The court finds that the said Daniel W. Fitzgerald did not have on the 11th day of July, 1923, and has not now vision with or without properly adjusted glasses, greater than what is known as light perception as defined in the opinion in the Springfield Court of Appeals, and written in Dahlin v. Commission, 262 S.W. 424;" and that the Supreme Court in the case of Shelley v. Mo. Comm. for the Blind, 274 S.W. 690, disapproved of the definition of light perception in the Dahlin case and held that the proper jurisdiction of such a case was in the Supreme Court and not the Court of Appeals; and that the Dahlin case definition does not conform to one given in the statute, do not invalidate the judgment of the circuit court and do not constitute any legal bar to the enforcement of said judgment by mandamus, the only method by which it can be enforced, for a judgment cannot be collaterally impeached: (a) Because it is consistent with later decision of same or some other court. Stevens v. Edwards, 98 Mo. 622, 12 S.W. 255. (b) Regardless of the facts upon which the court decided the case. Craig v. Bright, 213 S.W. 845. (c) Because it was based on unconstitutional law or for any other reason which might have been set up as a defense to the original action. Forest Lumber Co. v. Osceola Lead & Zinc Mining Co., 222 S.W. 398. (d) Because it is erroneous. Bedford v. Sykes, 168 Mo. 8. (2) Sec. 4 of the Blind Pension Act, now Sec. 8896, R. S. 1929, which provides that whenever it shall become known to the Commission that any person whose name is on the Blind Pension Roll is no longer qualified to receive a pension, after reasonable notice mailed to such person, etc., such fact shall be certified to the State Auditor and the name of such person shall be stricken from the Blind Pension Roll, does not authorize Missouri Commission for the Blind to take this action as to a person who has obtained a judgment of a circuit court against the Commission awarding said person a pension, otherwise the judgment of the circuit court would be a futile gesture. This section was intended to apply and does apply only to those cases where the Missouri Commission for the Blind has voluntarily of their own decision placed persons on the Blind Pension Roll, and not to those cases where the Commission has involuntarily placed them upon the Blind Pension Roll by judgment of a circuit court.
Action in mandamus. Defendant in error seeks to compel the Missouri Commission for the Blind to certify the name of Daniel W. Fitzgerald to the State Auditor for enrollment on the "blind pension roll," and to compel the Auditor to proceed in due course to pay the pension alleged to be due and which in the future may be due Fitzgerald under a judgment of the Circuit Court of Stoddard County. On a trial said court found that Fitzgerald was entitled to a pension under the statute providing for "pensions to deserving blind." Judgment was rendered accordingly on October 2, 1924, copies of which were forwarded to the State Auditor and Commission for the Blind. Thereupon the State Auditor enrolled Fitzgerald on the "blind pension roll" and he received a pension until July 1, 1926. At that time the Commission for the Blind certified to the State Auditor that Fitzgerald was "no longer qualified to receive a pension," and his name was stricken from the "blind pension roll." Of course, payment of the pension was discontinued. We assume the Commission acted on reasonable notice to Fitzgerald for the proceeding is not questioned for failure of notice.
Thereafter and on April 18, 1928, Fitzgerald...
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