State ex rel. Missouri Pacific R.R. Co. v. Seay

• Decision Date: 21 December 1886
• Parties: THE STATE EX REL. THE MISSOURI PACIFIC RAILROAD COMPANY, Petitioner, v. ABRAHAM J. SEAY, JUDGE, ET AL., Respondents.
• Court: Missouri Court of Appeals

23 Mo.App. 623

THE STATE EX REL. THE MISSOURI PACIFIC RAILROAD COMPANY, Petitioner,

v.ABRAHAM J. SEAY, JUDGE, ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Dec. 21, 1886.

APPLICATION for a writ of prohibition.

Writ denied.

THOMAS J. PORTIS and CREWS & BOOTH, for the petitioner: This court has jurisdiction. In re McDonald, 19 Mo. App. 532. The trial court had no jurisdiction to act in that case, and its appointment of commissioners was coram non judice. See Laws of Kansas; Charter of the St. L., K. C. & Col. R. R. Co.; 1 Rev. Stat. of Mo. 1879, sect. 790; Session Acts of Mo., 1881, amending sect. 790, p. 75. “A writ of prohibition issues from a higher to a lower court which is exceeding its jurisdiction, and commands the judge of such court, and the parties to the action, to cease from prosecuting the same on the ground that the lower court has no jurisdiction.” Green & Meyer's Mo. Pr. & Pl. 456, 529; Bull's Nisi Prius, 219; 2 Chitty's Practice, 355; Thomas v. Mead, 36 Mo. 248; Trainer, etc., v. Porter, Judge, 45 Mo. 336; Casby v. Thompson, 42 Mo. 133; Vitt v. Owens, 42 Mo. 512; The State ex rel. West v. Clarke County, 41 Mo. 44; Howard v. Pearce, 38 Mo. 296. “The province of the writ is not necessarily confined to cases where the subordinate court is absolutely devoid of jurisdiction, but is also extended to cases where such tribunal, although rightfully entertaining jurisdiction of the subject matter in controversy, has exceeded its legitimate powers.” High's Extra. Rem., sect. 781, p. 623; Quimbo Appo v. People, 20 N. Y. 531; The State v. Lewis, 76 Mo. 370; Att'y Gen'l v. Railroad, 36 Wis. 489; The State v. Laughlin, 7 Mo. App. 530; Railroad v. Commissioners, 127Mass. 50; Henshaw v. Cotton, 127 Mass. 60.

NOBLE & ORRICK, for the respondents: Prohibition issues only from the court having appellate jurisdiction. High on Extra. Remedies; Ex parte Gordon, 1 Black. 503; Ex parte Warmouth, 17 Wallace, 64. When the supreme court has jurisdiction it is exclusive. Const. of of Mo., Amendm't 1883; Resolution of Gen'l Assembly, approved March 29, 1883; Laws 1883, sect. 5, pp. 215-216. An appeal or writ of error will lie, and all questions of power or public use, or endeavor to agree, can then be tried. Railroad v. Evans & Howard Fire Brick Co., 85 Mo. 23, and cases cited. When there is other remedy, prohibition will not lie. Wilson v. Berkstresser, 45 Mo. 383, and other authorities in High on Extraordinary Remedies; The State ex rel. v. Lubke, 85 Mo. 338; The State ex rel. Morse v. Burckhartt, 87 Mo. 533.

ROMBAUER, J., delivered the opinion of the court.

The Missouri Pacific Railway Company, as relator, in the name of the state of Missouri, applied for a writ of prohibition against Seay, Judge of the circuit court of Franklin county; the St. Louis, Kansas City & Colorado Railroad Company, a foreign corporation, and O'Shea, Gentry, and Fisher, commissioners appointed by the Franklin county circuit court, to ascertain the points and manner of the crossing of the relator's railroad by the proposed railroad of the defendant company, and to assess the damages, if any, arising to the relator by the location, construction, maintenance, and operation of such crossing.

The relator's petition states, that the defendant company applied to the Franklin county circuit court, for the appointment of commissioners for the above purpose. That the relator appeared and filed written objections to such appointment, which being overruled it applied for an injunction to the judge in chambers, to restrain the further prosecution of such condemnation proceedings, which was also denied, and that the commissioners appointed, unless prohibited by the writ prayed for in this proceeding, would proceed to act in the premises.

The writ is prayed for on the ground that the defendant company is attempting to usurp the powers of a domestic corporation; that it is not authorized to exercise such powers either by the laws of the state of its creation, or by the laws of this state; that it has not complied with the provisions of its own charter by constructing, maintaining, and operating its lines of railroad in the state of Kansas to the boundary line of Missouri, or elsewhere, but began the construction of a railroad in the counties of St. Louis and Franklin, in the state of Missouri, on the extreme eastern side of this state, and several hundred miles from the boundary in the state of Kansas. The petition of the relator further states that unless these condemnation proceedings are prohibited by the order of this court, it will suffer irreparable injury, and that it has no remedy adequate in the premises, save the interposition of this court by the writ prayed for.

The petition was presented on the twelfth of October last, and an ex parte hearing had thereon, neither of the defendants being represented. The necessity of immediate action was strongly urged upon the court, and we made an order on that day upon all the defendants, citing them to show cause why the writ, as prayed for, should not be granted. This order was served on Judge Seay and the commissioners the succeeding day, and the defendant company entered its voluntary appearance before the return day thereof.

Subsequently, in due time, the defendants appeared and showed cause by return. The return of Judge Seay states, in substance, that by the petition presented to him by the defendant company, and its appearance thereto by the relator, it sufficiently appeared that the Franklin county circuit court had jurisdiction in the premises, both over the subject matter and the parties, and that he overruled the relator's objections to the defendant's petition, after due consideration, and if he committed any error therein, the relator had its remedy by appeal, or writ of error. That, as he is advised, the defendant commissioners had performed the duty assigned to them, and filed their report prior to the relator's application for a writ of prohibition, and that subsequently the relator filed in the Franklin circuit court, exceptions to said report, which are still pending and undetermined.

The defendant commissioners made return to the order, in which they state, among other things, that they were appointed commissioners, as stated in the petition, on the ninth day of October, 1886, and pursuant to such appointment duly qualified, and that on the twelfth day of October, 1886, they filed their report in the clerk's office of the Franklin county circuit court, by which report they fixed the manner and location of the crossing of the relator's railroad, by the road of the defendant company, and the damages arising to the relator therefrom. That the crossing thus fixed is an overhead crossing, spanning the entire right of way of the relator's railroad, the abutments of such crossing being located on the right of way of the defendant company.

The defendant company also filed its return, in which it denies, under the oath of its president, the facts stated in the relator's petition, as far as they relate to a non-compliance on its part with the provisions of its own charter, and denies that it has not constructed, maintained, or operated its line of railroad, or any railroad in the state of Kansas to the boundary line of Missouri. It avers that it has built its road in a large part in the state of Kansas, and to the boundary line thereof, and has extended its road as a complete railroad from the state of Kansas into the state of Missouri, and is building the part of the road where it crossed the relator's road as a part of the entire road, and that such road will be built in good faith and without delay.

The return further states the application for an injunction on the part of the relator before Judge Seay, which application raised the same questions as are raised here. Also that the commissioners had performed their duty, and filed their report before the application for this writ was made, and before they or the defendant company had any notice that such application would be made.

The relator demurred to the return of Judge Seay and to that of the defendant company, and took issue on the commissioners' return by reply. As the defendant company's return, however, states all the facts of any importance, in the same manner and to the same effect as the return of the commissioners, the case may be treated as if all returns had been demurred to raising the naked question, whether the returns show cause sufficient for denying the writ.

The questions presented by the returns have been fully and ably argued, orally and by briefs, and the arguments made cover a wide...