State ex rel. Pub. Serv. Comm. v. Mulloy, No. 32431.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Tipton
• Citation: 62 S.W.2d 730
• Parties: STATE OF MISSOURI at the Relation of PUBLIC SERVICE COMMISSION, STATE HIGHWAY COMMISSION, LEWIS ELLIS, Commander of Missouri State Highway Patrol, Relators, v. JERRY MULLOY, Judge of the Circuit Court of St. Louis County, Division No. 2.
• Docket Number: No. 32431.
• Decision Date: 27 July 1933

62 S.W.2d 730 STATE OF MISSOURI at the Relation of PUBLIC SERVICE COMMISSION, STATE HIGHWAY COMMISSION, LEWIS ELLIS, Commander of Missouri State Highway Patrol, Relators,
v.
JERRY MULLOY, Judge of the Circuit Court of St. Louis County, Division No. 2. No. 32431. Supreme Court of Missouri, Court en Banc. July 27, 1933.

Prohibition.

PRELIMINARY RULE MADE ABSOLUTE.

Stratton Shartel, Attorney-General, and Albert Miller, Assistant Attorney-General, for Lewis Ellis; D.D. McDonald, General Counsel, and G.C. Murrell, Assistant Counsel, for Public Service Commission; John W. Mather, Chief Counsel, and Wilkie Cunnyngham, Assistant Counsel, for State Highway Commission.

(1) The respondent, Judge of the St. Louis County Circuit Court, had no jurisdiction to issue the temporary restraining order. Secs. 5233, 5234, R.S. 1929; State ex rel. Case v. Seehorn, 223 S.W. 667. (2) The action of respondent in assuming jurisdiction of the petition of Madge Goldstein. Purple Swan Lines, Incorporated, and J.J. Goldstein for injunction and in issuing the temporary restraining order, without notice to the Public Service Commission, constitutes a usurpation of judicial power requiring correction by this court through writ of prohibition, for the reason that by virtue of the Public Service Commission Act the courts of this State are prohibited from enjoining the commission from the performance of its official duties. Sec. 5234, R.S. 1929; State ex rel. Caron v. Dearing, 236 S.W. 629. (3) Orders and decisions of the Public Service Commission may be reviewed by "writ of review" in the circuit court with the right of "appeal" to this court, but no such review can be had until application for rehearing has been made to the Public Service Commission and denied. Secs. 5233-8, R.S. 1929. (4) The commission was engaged "in the performance of its official duties" in entertaining, hearing and passing on the application of the Purple Swan Lines, Incorporated, to operate intrastate as a contract hauler. Therefore, respondent was without jurisdiction to entertain the petition of Madge Goldstein, Purple Swan Lines, Incorporated, and J.J. Goldstein or to issue the temporary restraining order against the Public Service Commission, the State Highway Commission or the State Highway Patrol. Secs. 5233, 5234, R.S. Mo. 1929. (5) Judicial interference in advance of the determination of the Public Service Commission is contrary to the plan and intent of the Public Service Commission Act and the intent of the framers of the act will be given effect. State ex inf. Barker v. Kansas City Gas Co., 254 Mo. 515. (6) Prohibition is the proper proceeding to prevent an inferior court from acting without or in excess of its jurisdiction. Const. of Mo., Art. VI, Sec. 3, Art. 12, ch. 7, R.S. 1929; State ex rel. Hyde v. Westhues, 316 Mo. 457; State ex rel. Kansas City Pub. Serv. Co. v. Latshaw, 30 S.W. (2d) 105. (7) The act of the Missouri Legislature known as Article 8, Chapter 33, found on page 304 of the Session Acts of 1931, is constitutional and its provisions do not violate any of the Federal or State constitutional rights of Madge Goldstein. Purple Swan Lines, Incorporated, and J.J. Goldstein. Said act is in all respects constitutional. Schwartzman Service, Inc., v. Stahl, 60 Fed. (2d) 1034.

Simon Fisher, W. Blodgett Priest and Robert L. Aronson for respondent.

(1) There can be no question that the circuit court had jurisdiction of all parties defendant, since all defendants entered general appearances by filing their motion to advance the hearing on the order to show cause. Baisley v. Baisley, 113 Mo. 544, 21 S.W. 29; Julian v. Kansas City Star Co., 209 Mo. 35, 107 S.W. 496; Markey v. Railroad Co., 185 Mo. 348, 84 S.W. 61; Columbia Brewing Co. v. Forgey, 140 Mo. App. 605, 120 S.W. 625; Roberts v. Meek, 221 Mo. App. 974, 296 S.W. 193; Eldon Ice & Fuel Co. v. Van Hooser, 163 Mo. App. 591, 147 S.W. 161; State ex rel. v. Falkenhainer, 309 Mo. 224, 274 S.W. 758; State ex rel. Tighe v. Brown, 224 Mo. App. 844, 23 S.W. (2d) 1092. (2) The extraordinary remedy of prohibition will not be substituted for a demurrer to a petition. State ex rel. Hog Haven Farms v. Pearcy, 328 Mo. 560, 41 S.W. (2d) 403; State ex rel. North v. Miller, 280 S.W. 47; State ex rel. Abel v. Gates, 190 Mo. 540, 89 S.W. 881; State ex rel. Bromschwig v. Hartman, 221 Mo. App. 215, 300 S.W. 1054; State ex rel. Brncic v. Huck, 296 Mo. 374, 246 S.W. 303; State ex rel. Term. Railroad Assn. v. Tracy, 237 Mo. 109, 140 S.W. 888. (3) The circuit court is a court of general common-law jurisdiction, having general original jurisdiction of equity actions. Renshaw v. Reynolds, 317 Mo. 484, 297 S.W. 374; Beekman Lumber Co. v. Acme Harvester Co., 215 Mo. 221, 114 S.W. 1087; Chicago, B. & Q. Ry. Co. v. Gildersleeve, 219 Mo. 170, 118 S.W. 86; Walton v. Walton, 6 S.W. (2d) 1025; State ex rel. Lbr. Co. v. Dearing, 180 Mo. 53, 79 S.W. 454; Crommer v. Dickmann, 180 Mo. 148, 79 S.W. 1195. (4) Injunction is a proper remedy for the prevention of the enforcement of an invalid statute. Arnold v. Hanna, 315 Mo. 823, 290 S.W. 416; State ex rel. Chase v. Hall, 297 Mo. 594, 250 S.W. 64; Merchants Exchange v. Knott, 212 Mo 616, 111 S.W. 565; Jewel Tea Co. v. Carthage, 257 Mo. 383, 165 S.W. 743. (5) A circuit judge has authority and discretion to arrange his own docket. (6) Where the need for an injunction is immediate notice is not a prerequisite. State ex rel. Wurdeman v. Reynolds, 275 Mo. 113, 204 S.W. 1093; State ex rel. McMillan v. Woodside, 254 Mo. 580, 163 S.W. 845; State ex rel. Bankers Assur. Co. v. McQuillin, 260 Mo. 164, 168 S.W. 924; Ex parte Gounis, 304 Mo. 428, 263 S.W. 988.

TIPTON, J.

Original proceedings in prohibition. The application for the writ was filed by the State of Missouri on the relation of the Public Service Commission of Missouri, the State Highway Commission, and Lewis Ellis, Commander of Missouri Highway Patrol. The writ of prohibition and the preliminary rule were directed against the respondent because of the certain suit, case number 94226, filed in the Circuit Court of St. Louis County, in which Madge Goldstein, the Purple Swan Lines, Incorporated, and...