State ex rel. Union Electric Light & Power Co. v. Reynolds

• Decision Date: 02 April 1914
• Citation: 165 S.W. 801,256 Mo. 710
• Parties: THE STATE ex rel. UNION ELECTRIC LIGHT & POWER COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

165 S.W. 801

256 Mo. 710

THE STATE ex rel. UNION ELECTRIC LIGHT & POWER COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

April 2, 1914

Writ allowed.

Boyle & Priest, Schnurmacher & Rassieur and T. E. Francis for relator.

(1) The matter in controversy exceeds the jurisdiction of the St Louis Court of Appeals. McCoy v. Randall, 222 Mo 24; Gartside v. Gartside, 42 Mo.App. 513; Fire Brick Co. v. Smelting Co., 48 Mo.App. 634; Overall v. Traction Co., 88 Mo.App. 175. (2) The State itself being relator herein, this court, and not the Court of Appeals, has jurisdiction. Constitution, art. 6, sec. 12. (3) On the oral argument, it was stated by counsel for respondents that this case was here before on an application for mandamus against the circuit court (see State ex rel Union El. L. & P. Co. v. Grimm, 220 Mo. 483), and the files and records of this court, of which this court will, of course, take notice, confirm this statement. This court therefore, having in such proceeding made a "decision or ruling" in a case still "pending" has exclusive appellate jurisdiction. R. S. 1909, sec. 3937, as amended by Laws 1911, p. 190; Curtis v. Sexton, 252 Mo. 221; Patent Door Co. v. Fuelle, 215 Mo. 421.

Thomas B. Harvey and R. P. Spencer for respondents.

(1) There is no "amount in dispute." (a) The matter in controversy is not susceptible of a monetary value. Schuerichs v. Light Co., 183 Mo. 497; Moffat v. Board of Trade, 203 Mo. 277. (b) The information, a demurrer to which was sustained, discloses no amount in dispute. Wilson v. Drainage Dist., 237 Mo. 39; Ferguson v. Comfort, 159 Mo.App. 32. (c) The case, as presented by the papers in the trial court, in no manner discloses facts which would bring this action within the appellate jurisdiction of the Supreme Court. Cherry v. Cherry, 150 Mo.App. 418; State ex rel. v. Gill, 107 Mo. 44. (d) Relator endeavors to bring an amount in dispute in the case by affidavit in the Court of Appeals after the record in the court of first instance is complete and certified to. This is not permissible. Tobacco Co. v. Rombauer, 113 Mo. 435. (e) It cannot be affirmatively determined from the record what the amount is, and therefore the Supreme Court does not have jurisdiction of the appeal. Kitchell v. Railroad, 146 Mo. 455; Scheurich v. Light Co., 183 Mo. 499. (f) The "amount in dispute" cannot be a contingent loss or damage. Ross v. Prentiss, 44 U.S. 771; Wallach v. Rudolph, 30 S.Ct. 587. The Court of Appeals has appellate jurisdiction of quo warranto proceedings wherein the State itself sues on information filed by the proper officer. State ex rel. v. Jenkins, 25 Mo.App. 484; State ex rel. v. Small, 131 Mo.App. 470; State ex rel. v. Gravel Road, 37 Mo.App. 496; State ex rel. v. Bacon Club, 44 Mo.App. 86; State ex rel. v. Modern Horseshoe Club, 167 Mo.App. 644. (3) The amendment to Sec. 3937, R. S. 1909, approved March 30, 1911, Laws 1911, p. 190, has no bearing on this case. That is meant to apply to a case that has been before this court upon a formal appeal, and in which, upon such formal appeal, this court has made any decision or ruling. Curtis v. Sexton, 252 Mo. 221.

OPINION

In Banc

Mandamus.

GRAVES J.

-- This is an original proceeding in mandamus by which it is sought to compel the Judges of the St. Louis Court of Appeals to transfer the case of "State of Missouri ex informatione Arthur N. Sager, Circuit Attorney, Informant, Appellant, v. Union Electric Light and Power Company, Respondent," an action in quo warranto, to this court. Upon application our alternative writ of mandamus was issued, to which return has been duly made by the Judges of the Court of Appeals, in the nature of a demurrer. Such return reads:

"Now come the respondents in the above entitled cause and for answer and return to said writ, demur to the petition and writ of the petitioner, and assign the following causes of demurrer, to-wit:

"1. Said petition and alternative writ and the matters and things therein as stated and set forth are not sufficient in law or equity to entitle the plaintiff to the relief asked for in said petition, or to authorize the issuing of said writ of mandamus.

"2. The record in the trial court of the cause of the State of Missouri ex informatione Arthur N. Sager, Circuit Attorney of the city of St. Louis, Appellant, v. Union Electric Light and Power Company, which the petitioner seeks to have transferred to the Supreme Court of Missouri, does not in any manner disclose such facts as would bring such action within the appellate jurisdiction of the Supreme Court, but said record does disclose such facts as would bring said cause within the appellate jurisdiction of the St. Louis Court of Appeals.

"3. There is no 'amount in dispute' and the State merely asks a judgment forfeiting the franchise or right of being a corporation, and the matter in dispute is not susceptible of a monetary valuation, there being nothing properly before the court from or by which any test of money value might be applied.

"4. The petitioner bases his prayer for relief, not upon the record in the trial court, but upon an affidavit made by one of its officers and filed after the appeal had been taken and the St. Louis Court of Appeals had acquired appellate jurisdiction of the cause.

"5. This case does not involve the construction of the Constitution of the United States or of this State; nor the validity of a treaty or statute of or an authority exercised under the United States; nor the construction of the revenue laws of this State; nor the title to any office in this State; nor title to real estate; nor is the county or other political subdivision of the State or any State officer a party to the suit within the meaning of the State Constitution."

The case is submitted here upon the pleadings. As the return is in the nature of a demurrer, thereby admitting the facts pleaded in the application for our writ, it will become necessary to detail some of those facts, but this will be done in connection with the points made. Relator in this court makes these points: (1) That the matter in controversy exceeds the jurisdiction of the Court of Appeals; (2) that the State of Missouri being the real party in interest in the quo warranto proceeding, the jurisdiction on appeal is in this court and not the Court of Appeals; and (3) it urged that this case was in this court before (State ex rel. v. Grimm, 220 Mo. 483) and that we made a ruling therein, and that for such reason, the appellate jurisdiction is here under the Act of 1911, Laws 1911, p. 190. Upon these several questions the case is briefed and submitted. This fairly outlines the controversy except as to details.

I. It is urged that the amount involved brings the jurisdiction of the quo warranto case, upon appeal, to this court. This calls for a little fuller statement of facts. In the circuit court the quo warranto case went off on demurrer. The facts in the petition were admitted by the demurrer. That petition is incorporated in and made a part of the petition for mandamus here. The facts of relator's petition for mandamus stand admitted in the instant case, because the respondents' return is in its nature a demurrer. The plaintiff in the quo warranto case seeks to oust the respondent of its corporate charter and thereby its right to do business in this State. In the quo warranto petition it is charged that the capital stock of the respondent in that case (the relator in the case at bar) is $ 10,000,000. It is also charged in that petition that the respondent in that case (relator here) "has a virtual monopoly of the business of furnishing, distributing and selling electricity to the public of the city of St. Louis, having control of at least ninety-five per cent of said business," etc. In addition to what appears from that petition, when the quo warranto case reached the St. Louis Court of Appeals, the respondent therein (the relator herein) filed its motion to transfer to this court, alleging among other things that more than $ 7500 was involved, and with said motion filed the following affidavit:

State of Missouri, City of St. Louis, ss.

A. C. Einstein, being duly sworn, makes oath and says that he is the First Vice President and General Manager of the Union Electric Light and Power Company, the respondent in the above entitled cause, and is entirely familiar with its business and affairs; that if a writ of ouster should be granted against said Union Electric Light and Power Company, excluding it from all corporate rights and privileges under the laws of this State and forfeiting its franchise rights, authority, license and certificate to do business under the laws of this State, and ousting it from its corporate franchise privileges, license and authority to do business under the laws of this State, as prayed by the appellant, the financial loss which will necessarily result to respondent from such judgment and action will be greatly in excess of ten thousand dollars, exclusive of the costs of this proceeding. A. C. Einstein.

Subscribed and sworn to before me this 21st day of December, 1912. My commission expires Dec. 22nd, 1914.

Theodore S. Heinz,

Notary Public, City of St. Louis, Mo.

From the petition for mandamus it appears that this motion was overruled, although the affidavit aforesaid was not controverted. The record here showing the facts above detailed relator contends that our permanent writ should go. We think as does relator, for reasons to be assigned in the succeeding paragraphs.

II. It is urged by the respondent here that we can not consider this affidavit, undisputed as it is. In Evens & Howard Fire Brick Co. v. St. Louis Smelting & Refining Co., 48 Mo.App. 636, an undisputed affidavit...