State ex rel. Pub. Serv. Comm. v. Mulloy
| Decision Date | 27 July 1933 |
| Docket Number | No. 32431.,32431. |
| 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. |
| Court | Missouri Supreme Court |
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.
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 J.J. Goldstein are plaintiffs and the Public Service Commission of Missouri, the State Highway Commission of Missouri, Lewis Ellis, Commander of the Missouri State Highway Patrol, P.H. Daniels, Division Engineer of the Missouri Highway Commission, Mike Tesson, Head Weight Officer of the Missouri Highway Commission, Philip R. Rabenau, Justice of the Peace in St. Louis County, and the members of the aforesaid commission are defendants. The petition in the case filed in the Circuit Court of St. Louis County seeks injunctive relief against all above-named defendants. Plaintiffs in the above-named suit allege in petition, among other things, that the Purple Swan Lines, Incorporated, is a corporation engaged in the business of "hiring out" or "chartering" its busses to various groups of people for particular trips to definite cities or other points, and return for a stipulated and agreed price based on the length of the trip and the number of passengers to be carried thereon. That the Public Service Commission, the State Highway Commission, Lewis Ellis Commander of the Missouri Highway Patrol, and employees are charged with the duty of the enforcement of the "Bus and Truck Law;" that if the Public Service Commission or any of the other defendants named in the injunction proceedings attempt to enforce the "Bus and Truck Law," it will deprive the plaintiffs of their property without due process of law.
At the time the petition for injunction was filed in the Circuit Court of St. Louis County, there was pending before the Public Service Commission an application on the part of the Purple Swan Lines, Incorporated, for a contract hauler's permit to operate intrastate as a passenger carrying contract carrier over an irregular route. The case before the Public Service Commission was No. 7851. This application before the Public Service Commission had been heard by the Commission, but it had not issued its report or order in this case. Without notice to relators, the respondent on July 27, 1932, issued a temporary restraining order against the enforcement of any or all provisions of the Missouri "Bus and Truck Law," being an act that the Missouri Legislature approved May 6, 1931, and being entitled, "An Act to repeal Article 8, Chapter 33, Revised Statutes of Missouri, 1929, entitled `Transportation of persons by motor vehicles,' and to enact in lieu thereof a new article containing seventeen sections, numbered from 5264 to 5280, both inclusive, and to be known as Article 8 of Chapter 33, providing for the supervision, regulation and licensing of the transportation of persons and property for hire over the public highways of the State of Missouri by motor vehicle; conferring jurisdiction upon the Public Service Commission to license, regulate and supervise such transportation; providing for the enforcement of the provisions of this act and for the punishment for violations thereof," and further enjoined any of the relators or "their agents, servants or employees," "from interfering with or stopping or attempting to interfere with or stop the rights of plaintiff, Purple Swan Lines, Incorporated, or that of any of its agents, servants or employees to the use of the streets and highways of the State of Missouri, and allowing plaintiff, Purple Swan Lines, Incorporated, and each of the other plaintiffs herein to continue to do and carry on the business and operate in the State of Missouri transporting persons for compensation by motor vehicles as in plaintiff's petition described and from attempting to enforce any and all of the provisions of said act."
The temporary restraining order directed the defendants in the cause to appear before the respondent in this cause on September 9, 1932, to show cause why a temporary injunction should not be granted. On ...
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