State ex rel. Giovanoni v. Rombauer

• Decision Date: 22 December 1894
• Citation: State ex rel. Giovanoni v. Rombauer, 125 Mo. 632, 28 S. W. 968 (Mo. 1894)
• Parties: The State ex rel. Giovanoni v. Rombauer et al., Judges
• Court: Missouri Supreme Court

28 S.W. 968

125 Mo. 632

The State ex rel. Giovanoni v. Rombauer et al., Judges

Supreme Court of Missouri, First Division

December 22, 1894

Peremptory writ denied.

Leverett Bell and Jesse A. McDonald for relator.

(1) If a court of appeals decides a cause contrary to the last previous ruling of the supreme court on the subject, the supreme court has power by mandamus to compel the court of appeals to transfer the cause to this court, notwithstanding that no one of the judges of the court of appeals is of opinion that the judgment of the court of appeals conflicts with the prior judgment of the supreme court. (2) The judgment of the court of appeals in State v. Giovanoni, is in conflict with the prior decision of the supreme court in State v. Fitzgerald, 44 Mo. 425. The provision of the state constition, section 9, article 8, requiring the trial and determination of contested elections of public officers, etc., by the courts of law and the legislation adopted thereunder, have not in any degree impaired the force and effect of State v. Fitzgerald, 44 Mo. 425, and it is well settled in State v. Francis, 88 Mo. 557 that a proceeding by quo warranto is not a contested election. The proposition that the house of delegates of St Louis under the charter making it the sole judge of the election, etc., of its members, has exclusive power over the subject and the courts by quo warranto have no right to inquire into or control the exercise of said power, is supported by McCrary on Elections, section 345; Paine on Elections, section 808; Henry v. City Council, 42 N J. 335; People v. Metzkee, 47 Cal. 524; Linegan v. Rittenhouse, 94 Ill. 208; 1 Dill. Mun. Corp. [4 Ed.], section 202. It is respectfully submitted that the demurrer should be overruled and a peremptory mandamus awarded.

OPINION

Brace, J.

Mandamus.

It appears from the return to the alternative writ issued herein, that on the sixteenth day of November, 1893, one Henry Bruch instituted in the circuit court of the city of St. Louis a proceeding by information for a writ of quo warranto against the relator in which it was claimed that the relator was intruding himself into the position of member of the house of delegates of the city of St. Louis from the fifth ward of said city. Thereafter the venue of said action was changed to the circuit court of St. Louis county, and on the second day of January, 1894, a judgment of ouster against the relator was rendered in said court, from which an appeal was taken to the St. Louis court of appeals, in which court a judgment was rendered on the ninth of October, 1894, affirming the judgment of the circuit court of St. Louis county.

Afterwards, on the tenth day of October, 1894, the relator filed the following motion in the court of appeals: "The appellant moves the court to transfer this cause to the supreme court, because the opinion of the court is contrary to the opinion of the supreme court in State v. Fitzgerald, 44 Mo. 425, and, further, because the case involves the title to an office under the state, namely, the office of member of the house of delegates of the city of St. Louis, and further, because the case involves the construction of section 9 of article 8 of the state constitution." Which motion, coming on to be heard, was, on the sixteenth day of October, 1894, overruled by said court and the relator thereupon instituted the present proceeding to compel said court to transfer said cause to this court.

It is not contended by the relator here, that the St. Louis court of appeals did not have appellate jurisdiction in said cause, but that the decision therein of said court is contrary to the decision of this court in State ex rel. v. Fitzgerald, 44 Mo. 425, and that in such case this court has power by mandamus to compel the court of appeals to transfer the cause to this court, although no one of the judges of the court of appeals is of the opinion that their decision does so conflict.

Under the constitutional amendment of 1884, in cases coming within the appellate jurisdiction of the courts of appeal, no appeal lies from those courts to the supreme court. By section 6 of that amendment it is provided "that the last previous ...