State ex rel. Randolph County v. Walden, 40405.

• Citation: 206 S.W.2d 979
• Decision Date: 08 December 1947
• Docket Number: No. 40405.,40405.
• Parties: STATE OF MISSOURI, at the Relation of RANDOLPH COUNTY, MISSOURI, Relator, v. J.A. WALDEN, Special Judge of the Circuit Court of Randolph County, Missouri.
• Court: United States State Supreme Court of Missouri

206 S.W.2d 979 STATE OF MISSOURI, at the Relation of RANDOLPH COUNTY, MISSOURI, Relator,
v.
J.A. WALDEN, Special Judge of the Circuit Court of Randolph County, Missouri. No. 40405. Supreme Court of Missouri. Court en Banc, December 8, 1947.

[206 S.W.2d 981]

Prohibition.

PROVISIONAL RULE MADE ABSOLUTE.

Marion E. Lamb and Samuel E. Semple for relator.

(1) The Supreme Court has original jurisdiction of the writ of prohibition. Art. V, Sec. 4, Constitution of Missouri, 1945. (2) Prohibition lies to prevent the exercise of judicial power where there is a total lack of jurisdiction or where the court is proceeding in excess of its jurisdiction and where there is no other adequate remedy for the relator to pursue as in the instant case. State ex rel. Judah v. Fort, 210 Mo. 512; State ex rel. Graham v. Seehorn, 246 Mo. 567; State ex rel. Orr v. Latshaw, 237 S.W. 770; State ex rel. Gary Realty Co. v. Hall, 17 S.W. (2d) 935, 322 Mo. 1118; State ex rel. Stone v. Thomas, 159 S.W. (2d) 600, 349 Mo. 22; State ex rel. Kansas City Pub. Serv. Co. v. Waltner, 169 S.W. (2d) 697; High on Extraordinary Remedies (3rd Ed.), sec. 762, p. 705; 3 C.J., sec. 133, p. 375; State ex rel. Hixon v. Lafayette County Court, 41 Mo. 39; Hannibal & St. Joseph Railroad Co. v. Morton, 20 Mo. 70; Ackerman v. Green, 201 Mo. l.c. 244; Reynolds v. Justice, 66 S.W. (2d) 169. (3) The plain, natural and ordinary meaning of Section 18, Article V, of the Constitution of Missouri, 1945, limits the right to create additional magistrates to counties of more than 30,000 inhabitants. Art. V, Sec. 18, Constitution of Missouri, 1945; State ex rel. Heimberger v. Board of Curators of the University of Missouri, 268 Mo. 598, 188 S.W. 128; State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 40; State ex rel. Kansas City v. Orear, 277 Mo. 303, 210 S.W. 392; State ex rel. Buck v. St. Louis & S.F.R. Co., 263 Mo. 689, 174 S.W. 64. (4) Section 18, Article V, of the Constitution, has been construed by the Legislature in Section 1, Laws of Missouri, 1945, page 767, as limiting the right to create additional magistrates to counties of more than 30,000 inhabitants. Sec. 1, Laws 1945, p. 767; Gantt v. Brown, 244 Mo. 271, 149 S.W. 644. (5) Assuming Section 18, Article V, of the Constitution, does give counties of less than 30,000 population the right to have additional magistrates, nevertheless, Section 18, Article V, of the Constitution is not self-executing and required enabling legislation. State ex inf. Norman v. Ellis, 28 S.W. (2d) 363, 325 Mo. 154; State ex rel. City of Fulton v. Smith, 194 S.W. (2d) 302. (6) The only legislation adopted to put into effect the provisions of Article V, Section 18, of the Constitution, is Section 1, Laws of Missouri, 1945, page 767, and the plain, natural and ordinary meaning of such legislation limits the right to create additional magistrates to counties of more than 30,000 inhabitants. Sec. 1, Laws 1945, p. 767; Sec. 655, R.S. 1939; Donnelly Garment Co. v. Keitel, 193 S.W. (2d) 577; Norberg v. Montgomery, 173 S.W. (2d) 387, 351 Mo. 180; Lancaster v. County of Atchison, 180 S.W. (2d) 706, 352 Mo. 1039; Peatman v. Worthington Drainage Dist., 176 S.W. (2d) 539. (7) Assuming that Section 1, Laws of Missouri, 1945, page 767, could be construed as an enabling act of Section 18, Article V, of the Constitution, with reference to counties of less than 30,000 population, nevertheless the petition filed in the Circuit Court of Randolph County does not comply with the requirements of the legislative enactment in that it does not contain the requisite number of signatures. Sec. 1, Laws 1945, p. 767.

Thos. J. Tydings for respondent.

(1) A circuit court of a Missouri county having a population of 30,000 or less has jurisdiction to make an order providing for the appointment of additional magistrates in such county, not exceeding two. (2) Jurisdiction conferred upon a court by the Constitution cannot be taken away nor diminished by the Legislature. (3) Section 18 of Article V of the Missouri Constitution contains the following: "According to the means of justice the foregoing number of magistrates in any county may be increased by not more than two, or such increased number may be decreased, by order of the circuit court on petition and after hearing on not less than thirty days' public notice." By the above provision, the circuit court was given jurisdiction to increase the number of magistrates "by not more than two" "in any county." (4) The Legislature cannot impair the jurisdiction of a constitutional court either by preventing its exercise or creating a coordinate authority. 12 C.J., p. 816, sec. 260; State ex rel. v. Locker, 266 Mo. 384; Redmond v. Quincy, etc., R., 225 Mo. 721. (5) Legislature can neither add to nor take away from courts the jurisdiction given them by the Constitution. State ex rel. v. Locker, 266 Mo. 384; State ex rel. v. Tincher, 258 Mo. 1; State ex rel. v. Nash, 209 Mo. 708; In re Sizer, 300 Mo. 369. (6) Whenever a statute or the organic law creates a right but is silent as to the remedy, the party entitled to the right may resort to any common law action which will afford him adequate and appropriate redress. Householder v. City of Kansas, 83 Mo. l.c. 495.

CONKLING, J.

This is an original proceeding in prohibition instituted here by Randolph County, which has less than 30,000 inhabitants, challenging the jurisdiction of the respondent Special Circuit Judge to determine the fundamental question whether the number of magistrate courts in that county can be increased by two under Section 18, Article V, Constitution Mo. 1945 and Section 1, Laws Mo. 1945, p. 767, et seq. In a respect hereinafter noted this constitutional provision and statute are seemingly in conflict.

The issue was raised by the parties in the following manner: Two justices of the peace of the county (who would be eligible for appointment as magistrates), brought a suit in the circuit court thereof to have the foregoing question adjudicated, and for an ascertainment of whether the additional magistrate courts were needed, which latter they alleged to be the fact. The relator county was permitted to intervene, and filed three motions to dismiss, severally on the grounds that: the plaintiff justices' petition failed to state a claim upon which relief could be granted; (2) the circuit court had no jurisdiction over the subject matter; (3) the petitioners had no legal capacity to sue.

The circuit court overruled these motions and was about to proceed with a hearing on the plaintiffs' petition when the county, as relator, filed its petition here praying the issuance of our provisional rule in prohibition directed to the respondent special

206 S.W.2d 982

judge of said circuit court. The latter waived issuance of the provisional writ, filed his return raising the same questions as below, and by agreement the cause is submitted on the pleadings.

Section 18 of Article V of our Constitution provides: "There shall be a magistrate court in each county. In counties of 30,000 inhabitants or less, the probate judge shall be judge of the magistrate court. In counties of more than 30,000 and not more than 70,000 inhabitants, there shall be one magistrate. In counties of more than 70,000 and less than 100,000 inhabitants there shall be two magistrates. In counties of 100,000 inhabitants or more there shall be two magistrates, and one additional magistrate for each additional 100,000 inhabitants, or major fraction thereof.

"According to the needs of justice the foregoing number of magistrates in any county may be increased by not more than two, or such increased number may be decreased, by order of the circuit court on petition, and after hearing on not less than thirty days public notice. The salaries of magistrates shall be paid from the source or sources prescribed by law." (Paragraphing and emphasis ours.)

In attempting to implement the foregoing Section 18, Article V, Constitution 1945, under a direction in Section 21, Article V thereof, that the General Assembly shall "provide for the administration of magistrate courts ...," the statute here involved, Section 1, Laws Mo. 1945, p. 768, copied verbatim the first paragraph of the constitutional provision as we have quoted it. But it changed the second paragraph and made that part of the statute read as follows: "According to the needs of justice, in counties of more than 30,000 inhabitants, the foregoing number of magistrates in any county may be increased, by not more than two, or such increased number may be decreased, by order of the circuit court ..." (Continuing, the statute prescribes a court procedure for making these changes, which we shall consider later.) It will be observed that the statutory Section 1 substitutes the above italicized words "in counties of more than 30,000 inhabitants" in place of the words "any county" which are used in the Constitution.

The relator county in its brief filed here contends (1) that the plain, natural and ordinary meaning of...