State ex rel. Ross v. Sevier

• Decision Date: 14 March 1934
• Parties: State of Missouri at the Relation of Neal J. Ross, Commissioner of Securities, Relator, v. Nike G. Sevier, Judge of the Circuit Court of Cole County
• Court: Missouri Supreme Court

69 S.W.2d 662

334 Mo. 977

State of Missouri at the Relation of Neal J. Ross, Commissioner of Securities, Relator, v. Nike G. Sevier, Judge of the Circuit Court of Cole County

Supreme Court of Missouri

March 14, 1934

Provisional rule made absolute.

Roy McKittrick, Attorney-General, and Gilbert Lamb Assistant Attorney-General, for relator.

(1) Prohibition is the proper remedy in this case. State ex rel. Railroad v. Wood, 316 Mo. 1037; State ex rel Page v. Terte, 324 Mo. 925. (2) Relator (defendant below) was entitled to a notice of the filing of the application for the order complained of and an opportunity to be heard on the question of whether or not the order should have been made. Sec. 928, R. S. 1929; Dowden v. Walrus Mfg. Co., 205 S.W. 261; State ex rel. Railroad v Wood, 316 Mo. 1032; State ex rel. Page v. Terte, 324 Mo. 925. (3) Relator (defendant below) was entitled to treat the letters and documents containing statements regarding the company as confidential and therefore properly refused copies or photographs to be made of same. Sec. 7739, R. S. 1929; Vogel v. Gruaz, 110 U.S. 316, 28 L.Ed. 158; Finley v. Steele, 159 Mo. 304.

Herbert G. Baur and Benjamin F. York for respondent.

(1) Relator's remedy was a motion to set aside the order, and not a writ of prohibition. State ex rel. Mills v. Calhoun, 234 S.W. 855; State ex rel. Furnace Co. v. Buckner, 207 Mo.App. 48. (2) The issuance of order to inspect was discretionary with respondent. Sec. 928, R. S. 1929. (3) Relator was not entitled to notice of application to inspect and to make record of the Southern Loan & Investment Company as the same was a public record. Sec. 7739, R. S. 1919. (4) Failure to give notice -- justify court's refusal to give order. Finks v. Hathaway, 64 Mo.App. 186. (5) The protection of the statutes precluding disclosing of confidential communication may be waived. Modern Woodman of America v. Angle, 127 Mo.App. 94. (6) The privilege is waived, whenever the person entitled to protection of statutes voluntarily makes public, matters of which a disclosure without his consent is forbidden. In re Burnette, 73 Kan. 609. (7) If a waiver is once acted upon it is entirely waived. Railroad v. O'Connor, 171 Ind. 686.

Atwood, J. All concur, except Hays, J., absent.

OPINION

ATWOOD

Neal J. Ross, State Commissioner of Securities filed petition for our writ of prohibition against the Judge of the Circuit Court of Cole County, Missouri, to prevent any further action by said court upon its order, issued in a mandamus proceeding there pending between the Southern Loan & Investment Company as plaintiff and relator herein as defendant, directing the defendant "to permit the plaintiff, or its attorneys of record, to inspect, at reasonable time or times, the file or files kept by the defendant, or his predecessor, relating to the affairs of the plaintiff, and that plaintiff be permitted to have made photostatic copies of any or all documents and papers remaining on file in the office of the said defendant relative to the affairs of plaintiff."

It is alleged in the petition filed herein that on May 31, 1933, the day the petition for mandamus was filed in said circuit court, summons was issued therein to relator herein commanding him to appear before said court on the first Monday in October, 1933, then and there to answer said petition wherein petitioner prayed for a writ of mandamus commanding relator herein "to issue to the petitioner a permit to sell investment certificates and to resume operation of its business and for such other process, orders or judgments as may seem proper;" that thereafter, on June 1, 1933, said court issued its alternative writ of mandamus therein; and that on June 2, 1933, said circuit court, without any notice of any kind being given to relator herein and without giving said relator any opportunity to be heard thereon, issued the order above quoted. It is further alleged in relator's petition that said order "is invalid and contrary to the laws of this State in that it directs the relator herein to disclose confidential matters which, under Section 7739, R. S. Mo. 1929, is not open to the public except on the special order of the relator in that the papers, matters and things referred to in said order, and requested to be seen by plaintiff in said case have been placed in a special file marked 'confidential,'" that respondent herein "was without power under the statutes heretofore stated, for the reasons herein given, to issue said order and in so doing acted in excess of and beyond his power and jurisdiction, and that he is without power and jurisdiction to enforce such order as made, and the enforcement thereof would be in excess of and beyond his lawful jurisdiction. Relator states, upon his best information and belief, that the respondent will take some action to enforce said order on the return date of the alternative writ of mandamus issued herein, which is July 1, 1933; and relator states that he has no other and completely adequate remedy to protect the rights and interests of the persons disclosing information to him under and by virtue of Section 7739, Revised Statutes 1929, and that he has no other and completely adequate remedy to protect the rights and interests of the public and of himself as an officer of the public as in the premises stated; that unless an alternative writ of prohibition is issued herein against respondent immediately and without notice, he will continue to act and to exercise jurisdiction herein to the great and irreparable detriment, damage and injury to the rights and interests of the public, to the rights and interests of those of the public who have given the respondent confidential information, and whom the relator desires to protect as by statute provided; that unless an alternative writ of prohibition is issued against respondent aforesaid irreparable detriment, damage and injury will occur to the relator in his official capacity as an officer of the State of Missouri."

Our provisional rule was duly issued to which respondent has made return denying that under the law it was necessary that relator herein be given notice of the "Application for the order to Inspect Books, Papers and Documents;" alleging that the issuance of said order is discretionary with respondent; and denying that said order is illegal and invalid. The return further "denies that whatever matters were to be disclosed, or might be disclosed, are confidential matters as to the parties therein, and that the matters were necessary to be disclosed for the complete determination of the said suit." The return also avers that "the alleged special file is the general file kept in the office of the Commissioner of Securities;" and further denies that "the same is confidential as to the parties litigant therein, and denies that the same is marked 'confidential.'" Said return further contains a denial that respondent was without power to issue said order, a denial that the issuance of said order was in excess of and beyond respondent's judicial power, and a denial of "each and every, all and singular allegations contained in relator's petition except those herein specifically admitted."

Relator filed reply averring that it was necessary under the law that relator be given notice of the "application for the order to inspect books, papers and documents," that the issuance of said order was not discretionary with respondent, that said order is and was illegal and invalid; and denying that "said special file is the general file kept in the office of the Commissioner of Securities," and averring that "the same is confidential as to the parties litigant in the action described in relator's petition," and that said file is marked confidential.

It was stipulated and agreed between the parties hereto that: "Subject to any contrary provisions herein, that, together with the admissions made by the pleadings herein both affirmatively and by failure to deny, the following be taken as and for the facts in this case.

"It is agreed that the order made by the respondent on the First day of June, 1933, in the cause of State of Missouri, at the relation of Southern Loan and Investment Company, a corporation, plaintiff, versus Neal J. Ross, Commissioner of Securities for the State of Missouri defendant, Case number 7143, is correctly set out in relator's petition for writ of prohibition herein.

"It is further stipulated and agreed that at the time of the issuance of the order to inspect the file or files kept by the relator relating to the Southern Loan and Investment Company, and to permit said company or its representatives to make photostatic copies of the papers and documents therein, nor thereafter was the relator herein defendant below, served with a copy of the application, or notice of the filing thereof, for said order in said cause number 7143, and that the relator was not given an opportunity to be present and be heard before or at the time of the issuance of said order.

"It is stipulated and agreed that at the time said order was granted by the respondent herein, the relator had in his custody in his official capacity, a file pertaining to the Southern Loan and Investment Company; that said file, among other things, contained certain letters and documents with reference to the said Southern Loan and Investment Company. That thereafter representatives of plaintiff in said cause number 7143 appeared at the office of the relator herein and requested the right to see and make copies of the file pertaining to the Southern Loan and Investment Company; that the relator produced the file and granted said persons the right to see the same, but refused then and there to permit said persons to make copies of the certain letters and...