State ex rel. McMonigle v. Spears

Decision Date19 August 1948
Docket Number41095
Citation213 S.W.2d 210,358 Mo. 23
PartiesState of Missouri at the Relation of K. L. McMonigle and Alva Richardson, Relators, v. W. C. Spears, Presiding Judge, and Clyde L. Robinson and Claude L. Peterson, Constituting the County Court of Stone County, Missouri, and Harold Crumpley, Clerk of the County Court of Stone County, Missouri, Respondents
CourtMissouri Supreme Court
Original Proceeding in Prohibition.

Writ made absolute.

Gideon & Mahankey for relators.

Arch A Johnson, for respondents.

Ellison J. All concur except Hyde, J., who concurs in result, but does not believe that one township can vote separately on nonenforcement of stock law after it has voted jointly with others to enforce it.




The case involves our statutory "stock law", enforced in specified territorial units of the state on a local option basis. The two relators are householders and legal voters of James township in Stone county. The respondents are three judges and the clerk of the county court of the county. That court has ordered a special election in James township under Sec. 14470a, Laws Mo. 1947, p. 28, on the question whether domestic animals shall be permitted to run at large therein. Last May a similar special election was held in the same James township and two others adjoining, as a unit, under Sec. 14476, [1] on the question whether domestic animals should be restrained from running at large in the whole unit, and the proposition carried.

Relators assert the respondent county judges by the contemplated special election here assailed, are attempting to enable James township to "secede from the union" of those three townships established at the May election. They maintain the recently enacted Sec. 14470a, supra, as written, does not authorize it; but they chiefly insist the statute is void because violative of Art. III, Sec. 23, Const. Mo. 1945, in that the bill by which it was enacted contains more than one subject, which is not clearly expressed in the title -- in consequence of which the respondent county judges have no jurisdiction since the purported statute under which they are acting is legally nonexistent.

On the other hand respondents say the title of the Act is general, and sufficiently broad to cover the provisions invoked here. They further assert the new Sec. 14470a provides procedure which is available in this instance. And finally they charge that the question is res judicata, because relators brought an injunction suit in the circuit court of Stone county against respondents to restrain them from holding the election under the new statute, which suit the circuit court dismissed on motion, on the ground that relators' petition failed to state a claim upon which relief could be granted.

Before proceeding to the merits, three preliminary or collateral matters should be considered. First, the parties have filed a stipulation waiving a return to our writ, and asked that the cause be submitted on the relators' petition and suggestions and respondents' suggestions in opposition, without formal setting and waiving oral argument. The stipulation requests an early decision of the controversy, on the ground that the public interest is involved because the enforcement of the stock law is hampered. On that showing we shall waive our rules and proceed as far as warranted. Mansur v. Morris, 355 Mo. 424, 425(1), 196 S.W.2d 287, 289(1).

Second, relators' petition for our preliminary writ, and the suggestions of the parties pro and con, were filed here on July 1, but the writ was not issued until our next conference, on July 12. In the meantime the date for the called election, July 6, 1948, had passed. Nevertheless, in view of the public importance of the question raised, and since the election defaulted because of the pendency of the cause here, we shall not treat the issues as moot. State ex. rel. Conran v. Duncan, 333 Mo. 673, 681(5,6), 63 S.W.2d 135, 138(5,6); State ex rel. Chubb v. Sartorious, 351 Mo. 1227, 1231(1), 175 S.W.2d 783, 785(1).

Third. On the question of res judicata. The prior injunction suit brought by relators against respondents presented the same issues as here except the constitutional question, which was not raised. The circuit court dismissed it on respondents' motion, on the ground that the petition failed to state a claim upon which relief could be granted. Relators did not ask leave to amend their petition under Sec. 81 of the Civil Code, Laws Mo. 1943, p. 378, Sec. 847.81 Mo. R.S.A. Neither did they dismiss the suit voluntarily with prejudice under Sec. 99 of the Code, or appeal. Under Sec's. 59, 61, 62 of the Code the dismissal of a suit on a defendant's motion of the above character is equivalent to the sustention of a demurrer under the former practice, and under Sec. 101 constitutes a dismissal with prejudice, operating as an adjudication upon the merits. On these facts is the instant prohibition suit barred under the doctrine of res judicata?

There are several cases on this point. [2] The Custer case held the doctrine applied where a demurrer had been sustained to a petition on the ground that it failed to state a cause of action, and after an ineffectual appeal the plaintiff had brought another suit on substantially the same petition. It was said there that the bar applies not only to issues tried under the first petition, but also to every issue which came within its purview, thus apparently limiting the scope of the bar to issues within the spirit and intendment of the former pleading. The Gott and Powell cases go further and extend the bar to claims which might have been litigated in the original cause of action. Here, the constitutional question was not within the purview of the petition filed in the circuit court in the injunction suit, but could have been raised as a part of the cause of action. And it was relators' duty to do so at the first opportunity, and keep the question alive. State ex rel. Wallach v. Oehler, 348 Mo. 655, 154 S.W.2d 781.

In the Powell case, supra, certain plaintiffs brought an injunction suit to restrain the City of Joplin from exercising municipal authority over annexed territory, partly on constitutional grounds both State and Federal. Prior thereto other plaintiffs had brought a similar Schildnecht suit as a class action for themselves and others similarly situated. It was based on statutory grounds, and raised no constitutional questions. The Powell case held the constitutional issues presented therein were res judicata because they could have been raised in the Schildnecht suit, and added that this was especially true because the public interest was involved, since otherwise the City might be exposed to a multiplicity of suits by various individuals.

On the other hand, the public interest sometimes calls for an opposite conclusion, and we may decide constitutional questions even ex mero motu where matters of public concern are involved. [3] Here, they were not raised in the prior circuit court case and it was not a class action. The statute is new, and the respondent judges need guidance. Whether they do or do not enforce the statute they may be subjected to a multiplicity of suits -- the very thing sought to be avoided in the Powell case. Both sides have agreed to a prompt submission of the cause, and under the Conran case just cited [3] we feel that in the public interest we should decide the constitutional question.

Returning to the merits. The controverted Sec. 14470a, Laws Mo. 1947, p. 28, is an amendment of Sec. 14470a, Laws Mo. 1945, p. 106, a new statute. The Act by which it was adopted contains a single section, and the amendment consists merely of the addition of one clause at the end, shown below in italics. We also italicise the preceding words "or article" and "any townships" for convenient reference hereafter. The title and text of the Act are as follows:

"AN ACT to amend Section 14470a of an Act of the 63rd General

Assembly known as House Bill No. 134, approved July 21, 1945 relating to domestic animals and other animals, and animals restrained from running at large, on Page 2, Line 18, by changing the period to a comma and adding the following: 'notwithstanding the county or township has theretofore voted to restrain animals from running at large.'

"Be It Enacted By The General Assembly of The State of Missouri, as follows:

"SECTION 1. That Section 14470a of an Act of the 63rd General Assembly known as House Bill No. 134, approved July 21, 1945, relating to domestic animals and other animals, and animals restrained from running at large, be and the same is hereby amended on Page 2, Line 18, by changing the period to a comma and adding the following: 'notwithstanding the county or township has theretofore voted to restrain animals from running at large.', so that said section as amended shall read as follows:

"SECTION 14470a. [4] Whenever two or more townships in one body in any county in the State of Missouri, by petition of one hundred householders, not less than ten of whom shall be from any one of said townships, petition the county court for the privilege to vote on the question of restraining horses, mules, asses, cattle, goats, swine and sheep from running at large, the same law governing counties is hereby applied to said townships, and said petitioners shall not be debarred the right to restrain said animals if a majority of the qualified voters of said townships, voting at any general or special election, shall vote in favor of so restraining such animals. Nothing in this section shall be so construed as to debar the right of restraining any two or more species of such animals: Provided, however, that nothing in this section or article shall be construed to prevent the...

To continue reading

Request your trial
1 cases
    • United States
    • Missouri Supreme Court
    • November 12, 1980 accordance with the applicable rules. Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763, 7663, 4 (1954); State ex rel. McMonigle v. Spears, 358 Mo. 23, 213 S.W.2d 210, 2125, 6 (banc 1948), and Stemme v. Siedhoff, 427 S.W.2d 461 (Mo.1968), cited by appellant, are examples of such In this case......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT