State ex rel. Lionberger v. Tolle

• Decision Date: 30 April 1880
• Citation: 71 Mo. 645
• Parties: THE STATE ex rel. LIONBERGER v. TOLLE.
• Court: Missouri Supreme Court

71 Mo. 645

THE STATE ex rel. LIONBERGER

v.TOLLE.

Supreme Court of Missouri.

April Term, 1880.

Quo Warranto.

WRIT DENIED.

Jno. D. Davis for relator.

W. B. Thompson for respondent.

Charles Gibson, Patrick & Frank and Lee & Chandler for the “Post-Dispatch Newspaper Company.”

HOUGH, J.

The relator is assignee of the Broadway Savings Bank, a creditor of the estate of John F. Tolle, deceased. The respondent, Margaret Tolle, is executrix of the will of said Tolle. An order of sale of real estate, for the payment of debts, was made by the probate court of the city of St. Louis, and the respondent was by said order required to give notice of said sale by advertisement, as required by law. The circuit judges of the city of St. Louis, in pursuance of section 320 of the Revised Statutes, had awarded the publication of all advertisements, judicial notices and orders of publication required by law to be made to the Post-Dispatch. The executrix refused to make publication of the notice of said sale in the Post-Dispatch, but advertised the same in the Missouri Republican.

The assignee of the bank now applies to this court for a writ of mandamus to compel the executrix to publish said notice in the Post-Dispatch. This court has no authority to employ its writ of mandamus for any such purpose. An executrix, in the performance of the duties imposed upon her by the will and the law regulating the settlement of estates, is a mere trustee engaged in administering a private trust. State ex rel. v. Powell, 67 Mo. 395. As to such matters, she holds neither an official nor a quasi official station, and cannot be proceeded against by mandamus. State ex rel. v. Trent, 58 Mo. 571. If this writ could issue in a case like the present, it might with equal propriety be invoked to compel the executrix to pay a legacy or make a final settlement. The probate court has ample authority to compel the executrix to perform her duty under the law. R. S., §§ 43, 1176, 1181, 1188. This is of itself a sufficient reason for refusing the writ. State ex rel. v. Governor, 39 Mo. 400. The question as to the power of this court to issue a writ of mandamus in a case like the present has not been raised by the respondent, but it is the duty of this court, of its own motion, to see that its process is neither abused nor misapplied.

As the purpose of this proceeding is to test the constitutionality of section 320 of the Revised Statutes, which requires the judges of the circuit courts in all cities having over 100,000 inhabitants to award to the newspaper therein being the lowest bidder and having a designated circulation the printing of all legal notices; and, as this question has been argued at length, and its early decision has been stated to be a matter of public concern, we think it best to state very briefly the views of this court upon the subject, notwithstanding we are of the opinion that it is not a proper case for mandamus. Two objections are urged against the constitutionality of the enactment cited. First, that it is in conflict with article 3 of the constitution, which prohibits the exercise, by either of the three departments of government, of powers properly belonging to the others. Second, that it is in violation of the provisions of the constitution prohibiting the enactment of special laws.

So far as the present case is concerned, section 320 of the Revised Statutes may be considered in connection with section 27 of article 6 of the constitution relating to the organization of the circuit court of St. Louis, which is as follows: “The circuit court of St. Louis county shall be composed of five judges, and such additional number as the general assembly may, from time to time, provide. Each of said judges shall sit separately for the trial of causes and the transaction of business in special term. The judges of said circuit court may sit in general term for the purpose of making rules of court, and for the transaction of such other business as may be provided by law, at such time as they may determine, but shall have no power to review any order, decision or proceeding of the court in special term.” This section clearly authorizes the legislature to impose upon the circuit judges of St. Louis duties relating to the administration of justice or connected therewith, which are not purely judicial in their character. All purely judicial duties are required by this section to be performed by the several judges sitting separately in special term, and they are expressly forbidden to exercise purely judicial functions when sitting in general term. They have no original jurisdiction, when thus sitting, to hear causes or to transact any judicial business, and they are directly prohibited from reviewing any order, decision or proceeding of the court in special term. They are authorized, however, when sitting in general term, to make rules of court, and to transact “such other business as may be provided by law.”

It is not always easy to distinguish between the...