State ex rel. McMillan v. Woodside
| Decision Date | 10 February 1914 |
| Parties | THE STATE ex rel. S. S. McMILLAN v. L. B. WOODSIDE, Judge, et al |
| Court | Missouri Supreme Court |
Writ quashed.
Holmes & Holmes and C. H. Davis for relator.
(1) Our statutes provide that the remedy by writ of prohibition shall be granted to prevent usurpation of judicial power, and in all cases where the same is now applicable according to the principles of the common law. R. S. 1909, sec. 2622; State ex rel. v. Goodier, 195 Mo. 561; State ex rel. v. Reynolds, 209 Mo. 161. (2) Prohibition will issue to stay proceedings by injunction to enjoin county courts from proceeding in accordance with the provisions of the statutes for the construction of bridges. The circuit court having no jurisdiction of the subject-matter, the respondent Woodside could not legally grant the temporary injunction. County courts have exclusive jurisdiction, and in these matters their acts are administrative and ministerial. Vitt v. Owens, 42 Mo. 512; Decker v Diemer, 229 Mo. 296; State ex rel. v. Co. Ct. Clark County, 41 Mo. 44; State ex rel. v. Goodier, 195 Mo. 551; State ex rel. v. Thomas, 183 Mo. 220; State ex rel. v. Bollinger, 219 Mo. 204; Hockaday v. Newson, 48 Mo. 196; Trainer v Porter, 45 Mo. 336; Jefferson Co. v. St. Louis Co., 113 Mo. 619; County Ct. v. Township, 10 Mo. 679; Railroad v. St. Louis, 92 Mo. 160; State ex rel. v. Aloe, 152 Mo. 466; Thomas v Mead, 36 Mo. 232. (3) The writ of prohibition will lie to restrain the unlawful exercise of judicial functions by inferior tribunals. State ex rel. v. Elkins, 130 Mo 90; Harrison Co. v. Burris, 84 Mo.App. 654; State ex rel. v. Goodier, 195 Mo. 551; Hockaday v. Newson, 48 Mo. 196; Vitt v. Owens, 42 Mo. 512; State ex rel. v. Co. Ct. Clark Co., 41 Mo. 44; State ex rel. v. Sale, 188 Mo. 496. (4) There is no merit in the contention of respondents that relator cannot maintain this action. The writ is granted at the instance of any one of the parties to the suit, and even to a stranger. Trainer v. Porter, 45 Mo. 336; State ex rel. v. Co. Ct. Clark Co., 41 Mo. 49; Thomas v. Mead, 36 Mo. 248. (5) The most frequent and important, if not the only grounds for equitable interference by injunctions in actions at law, are fraud, accident and mistake. Spelling on Injunctions and Other Extraordinary Remedies (2 Ed.), sec. 38. An injunction will be granted only to prevent the violation of a positive right. And mere negligence in a matter of official routine, though under the proceeding by virtue of which an officer's claim to act be irregular, will not warrant an injunction against him. Spelling on Injunctions and Other Extraordinary Remedies (2 Ed.), sec. 610. It is another well-established rule that injunction will not issue to prevent officers from doing acts authorized by valid law, enacted with a view to promoting the public welfare, whatever the opinion of the court as to the wisdom or expediency of such laws. Spelling on Injunctions and Other Extraordinary Remedies (2 Ed.), sec. 611. The rule that courts will not interfere to restrain or control the exercise of discretionary power also has special application in cases where injunction is sought to restrain the construction of works of public improvement, such as streets, sewers, bridges and public buildings; and when such matters are by law entrusted to municipal bodies equity will not revise or control the exercise of discretionary powers as to the terms upon which, or the manner in which the improvement shall be made. Spelling on Injunctions and Other Extraordinary Remedies (2 Ed.), sec. 689. (6) The county court was proceeding lawfully and in strict conformity with statutory requirements, had the exclusive jurisdiction to do the thing contemplated, and the circuit court is without jurisdiction to entertain injunction. R. S. 1909, sec. 10490; Art. 3, chap. 102, R. S. 1909. (7) The temporary injunction was issued without reasonable notice. Before an injunction shall be granted to stay any proceedings, the applicant should give reasonable notice. R. S. 1909, sec. 2517; Tuttle v. Blow, 176 Mo. 172; State ex rel. v. Wear, 135 Mo. 261. Where the application is made without notice to the defendant, and the allegations of the bill are stated upon information and belief, the proceedings cannot be sustained upon the hearing in the absence of proof of their correctness. Spelling on Inj. etc. (2 Ed.), sec. 29. The verification being only on "knowledge and belief," is insufficient. Fisher v. Patton, 134 Mo. 54; Pattison's Forms for Missouri Pleading, sec. 407; Bacon's Missouri Practice, sec. 835; 2 High on Injunctions (3 Ed.), secs 1567, 1568, 1569. There being no reasonable notice as required by the statute and the verification being insufficient, no restraining order could issue without proof of the correctness of the allegations of the petition. Spelling on Injunctions (2 Ed.), sec. 29. (8) Suppose the allegation in the petition for injunction, to the effect that the revenue for the year 1913, available for bridge purposes, is much less than the estimated cost of the bridge, is true, then, unless such shortage can be made up by transfer of other funds available for the purpose, the county court cannot lawfully draw warrants to pay for the bridge in excess of the revenue available for that purpose. If it should do so, such warrants would be void in the hands of every person who might become the holder. Sec. 12, art 10, Constitution; Thornburg v. School District, 175 Mo. 12; State ex rel. v. Neosho, 203 Mo. 40; Railroad v. Apperson, 97 Mo. 300. And certainly the taxes of the complainants could not be increased for the purpose of paying such void warrants, and they have no ground for equitable relief on this score. Hopkins v. Lovell, 47 Mo. 102; Trask v. Livingston Co., 210 Mo. 592; Polly v. Hopkins, 11 S.W. 1084.
Frank H. Farris and George M. Reed for respondents.
(1) The remedy by prohibition is only employed to restrain courts from acting in excess of their powers, and if their proceedings are within the limits of their jurisdiction prohibition will not lie. High's Extraordinary Remedies (3 Ed.), par. 767. (2) In the exercise of jurisdiction by prohibition it is important to distinguish between the nature of the action which it is sought to prohibit and the sufficiency of the cause of action as stated in the proceedings in the pending litigation. The nature of the action itself determines the jurisdiction of the court over the subject-matter, regardless of the sufficiency of its presentations or statement. If, therefore, the action is of such a nature as to fall within the jurisdiction of an inferior court, prohibition will not lie, merely because of insufficiency in the statement of the cause of action, in pleading, or because of insufficient proof to maintain the cause of action as stated. High's Extraordinary Remedies (3 Ed.), par. 767a, 767b, 768; State ex rel. v Muench, 225 Mo. 226. It may be safely asserted as settled law, and without exception, that unless the court sought to be prohibited is wanting in jurisdiction over the class of cases to which the pending case belongs, or is attempting to act in excess of its jurisdiction in a case of which it rightfully has cognizance, the writ will be denied. State ex rel. v. Tracy, 237 Mo. 118; State ex rel. v. Mills, 231 Mo. 50; State ex rel. v. Burchartt, 87 Mo. 539; Ostman v. Frey, 148 Mo.App. 283. (3) Injunction may be presented to the circuit court or judge thereof in vacation. R. S. 1909, sec. 2512. Temporary injunction may be granted when it shall appear by the petition that the plaintiff is entitled to the relief prayed for. R. S. 1909, sec. 2515. (4) Reasonable notice must be given the adverse party in such case, before an injunction can be raised. But no such notice is required in injunction suit to restrain other acts. R. S. 1909, secs. 2517, 2532. (5) The remedy by injunction shall exist to prevent the doing of any legal wrong whatever, whenever in the opinion of the court an adequate remedy cannot be afforded by an action for damages. R. S. 1909, sec. 2534. (6) The court may, under a proper showing, issue an injunction without notice to the other side, and it should do so whenever it is made to appear that an act ruinous to the plaintiff's rights is contemplated and notice given to the defendant would enable him to accomplish it before the court could prevent it. Tuttle v. Blow, 176 Mo. 171. The only notice required by our statute of an application for injunction is, in case the injunction is sought to stay proceedings at law. Tuttle v. Blow, 176 Mo. 172. The circuit courts may issue injunction against judges of the county court at the instance and upon application of private citizens who are taxpayers. Newmeyer v. Railroad, 52 Mo. 81; Rubey v. Spain, 54 Mo. 211; State v. Curators, 57 Mo. 178; Ranney v. Bader, 67 Mo. 479; Davis v. Hartwig, 195 Mo. 399; Blades v. Hawkins, 133 Mo.App. 328; Breimeyer v. Bottling Co., 136 Mo.App. 95; Martin v. Bennett, 139 Mo.App. 243. The county court in the exercise of its function, acts sometimes judicially and sometimes ministerially and in an administrative capacity. Its judicial acts cannot be controlled by injunction, but its ministerial or administrative acts may. The county court in determining that a bridge is necessary, and that such bridge shall be built at the expense of the county, and in what manner and of what material the same shall be built, acts in a judicial capacity, but in advertising for bids, in the letting and making of contracts for the construction of said bridge, it acts ministerially, or in an administrative capacity. The injunction proceedings involved in this cause did not seek to restrain the judges of the county court nor to control their action in determining that a bridge was necessary, or that it should be...
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