State ex rel. Taylor v. Nangle

• Decision Date: 13 February 1950
• Docket Number: No. 41564,41564
• Citation: 227 S.W.2d 655,360 Mo. 122
• Parties: STATE ex rel. TAYLOR, Attorney General, v. NANGLE, Judge.
• Court: Missouri Supreme Court

Page 655

227 S.W.2d 655

360 Mo. 122

STATE ex rel. TAYLOR, Attorney General, v. NANGLE, Judge.

No. 41564.

Supreme Court of Missouri, en Banc.

Feb. 13, 1950.

Rehearing Denied March 13, 1950.

J. E. Taylor, Attorney General, Arthur M. O'Keefe, C. B. Burns, Jr., Robert R. Welborn, Assistant Attorneys General, for relator.

Morris A. Shenker, St. Louis, for respondent.

CLARK, Judge.

Original prohibition to prevent the respondent circuit judge from proceeding further in a cause pending before him in the Circuit Court of the City of St. Louis and to abate the orders heretofore made in such cause.

The cause as to which prohibition is sought was filed on March 18, 1949, by Pioneer News Service, Inc., against the Southwestern Bell Telephone Company, praying for a mandatory injunction to compel the defendant to restore telephone service to the plaintiff and for a judgment for damages in the sum of $100,000.00.

On February 5, 1947, Phil M. Donnelly, then governor, and J. E. Taylor, attorney general, of Missouri, joined in a telegram to Southwestern Bell stating that telephone service supplied by it was being used by Pioneer News to register and record bets on horse races in violation of Section 4674 of our statutes. All mention of statutes will refer to sections of Revised Statutes Missouri, 1939, and Mo.R.S.A. The telegram referred to a provision in the telephone company's tariff on file with the Public Service Commission, effective September 2, 1943, authorizing the discontinuance of telephone service upon notice from any law enforcement official that such service was being used as an aid in the violation of law, and requested the telephone company to discontinue service to Pioneer News.

On February 6, 1947, the telephone company disconnected all telephones, except one, in the possession of Pioneer News.

On March 18, 1949, more than two years later, Pioneer News brought the suit above mentioned against the telephone company. Respondent judge entered an order for the telephone company to show cause why a mandatory injunction should not be issued compelling it to restore telephone service to the plaintiff. On motion the attorney general was permitted to intervene and he and the telephone company filed separate motions to dismiss on the ground that the Public Service Commission had exclusive primary jurisdiction of the subject of the action. The telephone company also filed its return to the order to show cause.

On April 12, 1949, respondent entered his 'finding of facts, conclusions of law, judgment and decree.' He stated that 'original jurisdiction of this action lies exclusively in the Public Service Commission,' and that jurisdiction of the court is foreclosed except to the limited extent of prescibing the behavior of the parties while they await action by the Commission. He stated that the court had such limited jurisdiction because the Commission has no power to enforce temporary or interlocutory relief pending a hearing. He referred to an order of the Commission made in 1945 requiring the telephone company to continue service to Pionerr News and stated: 'The court is aware that the Commission may find circumstances different from those in the case of 1945; but until the Commission does so, and such finding would seem to be within the exclusive jurisdiction of the Commission, the court is of the opinion that plaintiff's telephone service should be restored, and should be continued pending a determination by the Commission.' The decree enjoined the telephone company from discontinuing service to Pioneer News until authorized to do so by order of the Commission or until further order of the court.

On April 15, 1949, the Public Service Commission entered an order reciting that the attorney general had called to its attention the order issued by respondent on April 12, 1949; that the action of the telephone company in discontinuing service had not been brought before it by Pioneer News; and authorizing the telephone company to discontinue such service under its tariff heretofore mentioned.

On April 18, 1949, on motion of Pioneer News, respondent entered a further order, calling attention to the order of the Commission on October 4, 1945, by which the telephone company was ordered to continue to furnish service to Pioneer News until discontinued by mutual consent or further order of the Commission. Respondent stated that there had been no application for a rehearing of such order, and that the later order of the Commission, made on April 16, 1949, is void because made ex parte without notice. Respondent ordered that the injunction be kept in force until the further order of the court or until the order of the Commission dated October 4, 1945, be revoked or modified by the Commission in accordance with the statutes.

After unavailing motions, the attorney general filed in the Supreme Court the pending application for prohibition and the same is now at issue.

A great many decisions have been cited. We have examined them, but it will be necessary to discuss only a few of them. The legal correctness of no case cited is questioned by either party, but the parties seriously disagree as to the relevancy of some of the cases to the facts of the instant case.

We agree with the case cited by respondent as to the general nature of the writ of prohibition. Those cases and many others hold that the writ is not a writ of right, but its issuance in a given case is addressed to the sound discretion of the court. However, the chief purpose of the issuance of the writ by this court is to confine a lower court within its proper jurisdiction; that is, to prevent it from acting without or in excess of its rightful jurisdiction.

We do not agree with respondent's contentions that the writ is improper here either because relator has another adequate remedy or because the act sought to be prohibited has already been performed. Remedy by appeal is unavailable because no final judgment or appealable interlocutory judgment has been rendered. Civil Code, Section 126, Mo.R.S.A. Sec. 847.126. For the same reason certiorari would not avail. State ex rel. Walbridge v. Valliant, 123 Mo. 524, 27 S.W. 379, 28 S.W. 586.

Ordinarily prohibition is preventive, rather than corrective, and issues to restrain the commission of a future act and not to undo on act already performed. Yet there is abundant authority that the remedy is available where a judicial body is proceeding without jurisdiction and some part of its action remains to be performed. If respondent was without jurisdiction to grant the injunction, its enforcement may be prohibited. 50 C.J., p. 662, sec. 18; same, p. 711, sec. 139; St. Louis, K. & S. Ry. v. Wear, 135 Mo. 230, 36 S.W. 357, 658, 33 L.R.A. 341; State ex rel. Rogers v. Rombauer, 105 Mo. 103, 16 S.W. 695; State ex rel. Ellis v. Elkin, 130 Mo. 90, 30 S.W. 333, 31 S.W. 1037; State ex rel. Schoenfelder v. Owen, 347 Mo. 1131, 152 S.W.2d 60. In State ex rel. St. Louis S. F. Railway Co. v. Russell, 358 Mo. 1136, 219 S.W.2d 340, this court modified an injunction granted by a circuit court. Cases cited by respondent are those in which the act sought to be prohibited had already been fully performed.

Our statutes, Sections 5663-5690, inclusive, vest in the Public Service Commission extensive control over public utilities including telephone companies. Specifically, the Commission, either upon its own motion or upon complaint of an interested party, may determine the reasonableness of rates to be charged and the adequacy of service to be performed by such utilities, and to require such service to be furnished to any person lawfully entitled thereto. The power to determine such matters, in the first instance, is vested exclusively in the Commission and not in the courts. State ex inf. Barker v. K. C. Gas Co., 254 Mo. 515, 163 S.W. 854; State ex rel. Cirese v. Ridge, 345 Mo. 1096, 138 S.W.2d 1012; State ex rel. Kansas City Power & Light Co. v. Buzard, 350 Mo. 736, 168 S.W.2d 1044.

Respondent expressly concedes that exclusive primary jurisdiction is vested in the Commission to determine whether the telephone company is justified in discontinuing service to Pioneer News. But respondent contends that his court has jurisdiction of the subject matter and the parties in the cause pending before it and, as a court of equity, has power by mandatory...