State ex rel. McGrew Coal Co. v. Ragland

• Decision Date: 02 October 1936
• Citation: 97 S.W.2d 113,339 Mo. 452
• Parties: State of Missouri at the relation of McGrew Coal Company, a Corporation, and Estelle Bard Hermansader, Relators, v. B. E. Ragland, Clerk of Circuit Court of Lafayette County, Respondent, Henry Morgenthau, Jr., Director General of Railroads, Intervenor
• Court: Missouri Supreme Court

97 S.W.2d 113

339 Mo. 452

State of Missouri at the relation of McGrew Coal Company, a Corporation, and Estelle Bard Hermansader, Relators, v. B. E. Ragland, Clerk of Circuit Court of Lafayette County, Respondent, Henry Morgenthau, Jr., Director General of Railroads, Intervenor

Supreme Court of Missouri

October 2, 1936

Alternative writ quashed.

Blackwell & Sherman for relators.

(1) October 8, 1926, this court placed a different construction upon said Article XII, Section 12 of the Missouri Constitution, and thereby reversed all previous decisions and held the constitutional provision was not self-enforcing. To give retroactive effect to said interpretation would be violative of the Federal and State constitutional and statutory guarantees forbidding the passage of retroactive or ex post facto laws or laws depriving one of property without due process of law, and the opinion of the court giving retroactive effect to said new interpretation of said constitutional provision, was and is erroneous. Said decision should have specifically stated that it was to be operative from and after October 8, 1926, and not prior thereto, and was and is erroneous in that it failed so to do. Amend. V Fed. Const.; Sec. 10, Art. I, Fed. Const.; Sec. 1, Amend XIV, Fed. Const.; Sec. 9, Art. I, Fed. Const.; Sec. 15, Art. II, Mo. Const.; Sec. 30, Art. II, Mo. Const.; Secs. 658, 660, 662, R. S. 1929. (2) "Consequently the courts have established and adopted the rule that, where a statute or law has received a given construction by a court of last resort, the rights, positions, and course of action of parties who have acted in conformity with, and in reliance upon, such construction of the statute, are not in anywise impaired or disturbed by reason of a change in the construction of the same statute made by a subsequent decision of the court of last resort, in overruling its former decision, and the effect of the change in judicial construction is that it operates prospectively, and not retrospectively, in the same manner as though the statute or law had been amended by the Legislature," and the opinion of the court, giving retroactive effect to a new interpretation of said constitutional provision, was and is erroneous. State ex rel. May Dep. Stores Co. v. Haid, 38 S.W.2d 54; 327 Mo. 586; Abington v. Townsend, 271 Mo. 611; Leete v. State Bank of St. Louis, 115 Mo. 198, Id. 141 Mo. 582; Ruecking Const. Co. v. Withnell, 269 Mo. 558; State ex rel. v. Hackman, 272 Mo. 607; Koch v. Mo. Lincoln Trust Co., 181 S.W. 49; Rogers v. Pac. Railroad Co., 35 Mo. 158; Secs. 658, 660, 662, R. S. 1929; State v. Lewis, 273 Mo. 535; Klocke v. Klocke, 276 Mo. 582; Douglass v. Pike Co., 101 U.S. 677, 25 S.Ct. 971; United States v. Republic Steel Corp., 11 F.Supp. 117; Turner v. Board of Trade of Chicago, 244 F. 108; Pleasant Township v. Aetna Life Ins. Co., 138 U.S. 67; Carroll County v. Smith, 111 U.S. 556, 28 L.Ed. 517.

W. W. Graves, Jr., and Thos. J. Cole for respondent;

Alex. M. Bull of counsel.

(1) The judgment obtained by relator McGrew Coal Company on February 15, 1924, is not now a valid and enforceable judgment against the Director General, and no execution can now be issued thereon. (a) Relators cannot now enforce the judgment of February 15, 1924, because, on appeal to the Supreme Court of Missouri, said judgment was on its merits reversed, annulled and for naught held and esteemed and the mandate or judgment of this court so reversing and destroying the judgment of the circuit court has gone down, the term at which it was rendered has expired and said judgment has become res judicata as to the issues involved in the cause in which it was rendered. 34 C. J., p. 774, sec. 1192; Strottman v. Ry. Co., 228 Mo. 154, 128 S.W. 187; Abbott v. Ry. Co., 232 Mo. 616, 135 S.W. 1199; Finnegan v. Ry. Co., 244 Mo. 663, 149 S.W. 612; Giniocchio v. Railroad Co., 264 Mo. 516, 175 S.W. 196; Berry v. Milling Co., 304 Mo. 302, 263 S.W. 406. (b) Where the mandate contains express directions, e. g., that the judgment appealed from should be reversed, annulled and for naught held and esteemed, such judgment or mandate is sufficient of itself to destroy the judgment of the circuit court, unaided, uncontrolled or unexplained by any statements contained in an opinion filed with such mandate. 4 C. J., p. 1211, sec. 3264; West v. Brashear, 14 Pet. 51, 10 L.Ed. 350, 39 U.S. 51; Gamble v. Gibson, 10 Mo.App. 335; Sayman v. Becker, 269 S.W. 973; Wollman v. Loewen, 96 Mo.App. 299, 70 S.W. 253, Id. 108 Mo.App. 581, 84 S.W. 166. (c) Even if relator McGrew Coal Company ever had an enforceable judgment against the Director General after this court sent down its mandate, such judgment, dated February 15, 1924, is not alleged to have been revived nor is it alleged that any payments were made thereon, and said judgment is now conclusively presumed to be paid, under Section 886, Revised Statutes 1929, and respondent, as clerk of the Lafayette County Circuit Court, cannot now be compelled to issue execution on said judgment. The Director General did not even become a party to the proceeding now pending until more than ten years after the judgment of February 15, 1924. Kansas City v. Field, 270 Mo. 515, 194 S.W. 39; Furnace Co. v. Smith, 17 S.W.2d 378; Eubanks v. Eubanks, 29 S.W.2d 214. (2) The proceeding instituted here by relators is, in effect, a second motion for rehearing and is barred by Rule 21 of this court. Rule 21, Mo. S.Ct. (3) Relator's action is a collateral attack on the judgment of this court and cannot prevail. (a) Because all the points now urged by relators either were or could have been raised and decided in the original action and are now res judicata. 34 C. J., p. 567, sec. 869; Bates v. Bodie, 245 U.S. 520; Eversmeyer v. Broyles, 280 Mo. 109; Rankin v. Real Estate Co., 199 Mo. 350; Spratt v. Early, 199 Mo. 501; St. Louis v. United Rys., 263 Mo. 424. (b) Relators in this case were either parties or in privity with the parties in the former case, and are bound thereby. 34 C. J., p. 525, sec. 831. (c) The court having had jurisdiction of the subject matter and the parties thereto, its judgment, even if it had been erroneous, is not subject to this collateral attack. Jones v. Edeman, 223 Mo. 317; Smith v. Black, 231 Mo. 681, 132 S.W. 1129; Norman v. Eastburn, 230 Mo. 168, 130 S.W. 276; Davis v. Morgan Foundry Co., 224 Mo.App. 162, 23 S.W.2d 231; Forest Lbr. Co. v. Osceola Lead & Zinc Mining Co., 222 S.W. 398; Schodde v. United States, 69 F.2d 866. (4) The decision of this court of which relators complain violates no Federal or State constitutional provision. (a) The Federal and Missouri prohibitions against ex post facto laws apply only to criminal, and not to civil, proceedings. Ex parte Bethurum, 66 Mo. 550; 12 C. J., pp. 1097, 1099, secs. 803, 805; Johannessen v. United States, 225 U.S. 227; Gladney v. Sydnor, 172 Mo. 326. (b) There is no Federal constitutional provision against retrospective legislation or decisions, and the provision of Missouri Constitution prohibiting retrospective laws applies only to legislative acts and not to judicial decisions. Sec. 15, Art. XXI, Mo. Const.; Stegall v. Am. Pigment & Chemical Co., 173 S.W. 674, 263 Mo. 719; Kemper Mill & Elevator Co. v. Ry. Co., 178 S.W. 503; Hilgert v. Barber Asphalt Pav. Co., 173 Mo. 319; Newman v. John Hancock Life Ins. Co., 316 Mo. 454, 290 S.W. 134; 12 C. J. 990, sec. 602. (c) The Federal and State constitutional provisions prohibiting laws impairing the obligation of contracts apply only to legislative acts and not to judicial decisions. Cases (b), supra; Hawks v. Hamill, 288 U.S. 52, 53 S.Ct. 240, 77 L.Ed. 618; Tidal Oil Co. v. Flanagan, 263 U.S. 444, 44 S.Ct. 197, 68 L.Ed. 382; Fleming v. Fleming, 264 U.S. 29, 44 S.Ct. 246, 68 L.Ed. 547; Great N. Railroad Co. v. Sunburst Oil Co., 287 U.S. 358; Bacon v. Texas, 163 U.S. 216, 16 S.Ct. 1023, 41 L.Ed. 132; Natl. Mut. Bldg. Assn. v. Brahan, 193 U.S. 635, 24 S.Ct. 532, 48 L.Ed. 823; Cleveland, etc., Railroad Co. v. Cleveland, 235 U.S. 50, 35 S.Ct. 21, 59 L.Ed. 127. (d) It is settled law that a decision of a state court of last resort overruling a previous line of decisions construing a statute and declaring void a contract made in reliance on the previous decision does not violate the due process clauses of the Federal Constitution. Amend. V, and Sec. 1, Amend. XIV, Fed. Const.; O'Neil v. N. Colo. Irr. Co., 242 U.S. 20, 37 S.Ct. 7, 61 L.Ed. 123; Tidal Oil Co. v. Flanagan, 263 U.S. 444, 44 S.Ct. 197, 68 L.Ed. 382; Arrowsmith v. Harmoning, 118 U.S. 194, 6 S.Ct. 1023, 30 L.Ed. 243; Patterson v. Colorado, 205 U.S. 454, 27 S.Ct. 556, 51 L.Ed. 879; Am. Ry. Express Co. v. Commonwealth of Ky., 273 U.S. 269, 47 S.Ct. 353, 71 L.Ed. 639; Corrigan v. Buckley, 271 U.S. 323, 46 S.Ct. 521, 70 L.Ed. 969; 12 C. J., p. 1216, sec. 991; 6 R. C. L., p. 445, sec. 441.

Alex. M. Bull for Intervenor;

W. W. Graves, Jr., and Thos. J. Cole of counsel.

If the writ prayed for is granted the Director General will be deprived of his property without a full and fair hearing and without due process of law, because in McGrew Coal Co. v. Mellon, 315 Mo. 798, he raised certain defenses not there passed upon by this court, and he cannot now have them considered since they are not before this court in this proceeding, and a motion for rehearing is barred. Sec. 1, Amend. XIV, U.S. Const.; Sec. 30, Art. II, Mo. Const.; Leigh v. Green, 193 U.S. 79; Moyer v. Peabody, 212 U.S. 78; Hovey v. Elliott, 167 U.S. 409; Oregon Railroad & N. Co. v. Fairchild, 224 U.S. 510; Mt. St. Mary's Cemetery v. Mullins, 248 U.S. 501; Chicago Junction Case, 264 U.S. 258; Georgia Ry. & El. Co. v. Decatur, 295 U.S. 165; Black on Const. Law (4 Ed.), p. 630.

Hays, J. All concur, except Tipton, J., not sitting.

OPINION

HAYS

Original...