State ex rel. Wabash Ry. Co. v. Shain

• Decision Date: 05 June 1937
• Citation: 106 S.W.2d 898,341 Mo. 19
• Parties: State of Missouri at the relation of Wabash Railway Company, a Corporation, and Norman B. Pitcairn and Frank C. Nicodemus, Jr., Receivers thereof, Relators, v. Hopkins B. Shain, Ewing C. Bland and Robert M. Reynolds, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

106 S.W.2d 898

341 Mo. 19

State of Missouri at the relation of Wabash Railway Company, a Corporation, and Norman B. Pitcairn and Frank C. Nicodemus, Jr., Receivers thereof, Relators, v. Hopkins B. Shain, Ewing C. Bland and Robert M. Reynolds, Judges of the Kansas City Court of Appeals

Supreme Court of Missouri

June 5, 1937

Alternative writ made peremptory.

N S. Brown, Joseph H. Miller, R. W. Hedrick and Frank E. Atwood for relators.

(1) When an inferior court declines to hear a case on the merits for lack of jurisdiction, and its refusal so to do is based on an erroneous construction of the law, the Supreme Court will issue its writ of mandamus where there is no other adequate remedy. Castello v. St. Louis Circuit Court, 28 Mo. 275; State ex rel. Bayha v Phillips, 97 Mo. 347, 10 S.W. 855; State ex rel. Ry Co. v. Smith, 172 Mo. 460, 72 S.W. 692; State ex rel. Title Guar. & Trust Co. v. Broaddus, 210 Mo. 1, 108 S.W. 544; State ex rel. Modern Woodmen v. Broaddus, 239 Mo. 369, 143 S.W. 455; State ex rel. Pump Co. v. Homer, 249 Mo. 58, 155 S.W. 406; State ex rel. Field v. Ellison, 277 Mo. 46, 209 S.W. 107; State ex rel. Case v. Seeborn, 283 Mo. 508, 223 S.W. 668; State ex rel. Kansas City L. & P. Co. v. Trimble, 303 Mo. 284, 258 S.W. 696; State ex rel. General Motors Acceptance Corp. v. Brown, 330 Mo. 220, 48 S.W.2d 859. (2) No other adequate remedy at law is available to petitioners and relators herein. State ex rel. Steam Pump Co. v. Horner, 249 Mo. 65, 155 S.W. 406. (3) This appeal is authorized by statute and the Kansas City Court of Appeals has jurisdiction to hear and determine this case on the merits. Sec. 1018, R. S. 1929; King's Lake Drainage & Levee Dist. v. Jamison, 176 Mo. 565, 75 S.W. 679; Dahlin v. Mo. Comm. for the Blind, 262 S.W. 421; In re Campbell, 323 Mo. 757, 79 S.W.2d 754. (4) It was not the intention of the Legislature to deny an appeal to any party aggrieved by a circuit court judgment. Secs. 5234, 5237, R. S. 1929; Curtin v. Zerbst Pharmacal Co., 333 Mo. 346, 62 S.W.2d 772; State ex rel. Consolidated School Dist. v. Hackmann, 302 Mo. 558, 258 S.W. 1011; Perry v. Strawbridge, 209 Mo. 639, 108 S.W. 641; Bowers v. Mo. Mut. Assn., 333 Mo. 492, 62 S.W.2d 1063; Keeney v. McVoy, 206 Mo. 68, 103 S.W. 946; Stack v. Genl. Baking Co., 283 Mo. 396, 223 S.W. 94; Sec. 5263, R. S. 1929. (5) The Kansas City Court of Appeals erred in construing the next to the last sentence in Section 5234, Revised Statutes 1929 (Mo. Stat. Ann., p. 6662), as though it stood alone. When construed together with pertinent parts of Section 5237, Revised Statutes 1929 (Mo. Stat. Ann., p. 6666), as previously construed by the Supreme Court, the clear meaning is that appeals are allowed in all cases before the Public Service Commission according to the jurisdiction of appellate courts as fixed by the Constitution. Secs. 5234, 5237, 5261, R. S. 1929; Holder v. Elms Hotel Co., 92 S.W.2d 622; State ex rel. Karbe v. Bader, 336 Mo. 259, 78 S.W.2d 839; State v. Naylor, 328 Mo. 335, 40 S.W.2d 1084; State ex rel. Dean v. Daues, 321 Mo. 1126, 145 S.W.2d 1001; Dysart v. St. Louis, 321 Mo. 514, 11 S.W.2d 1051; Home Ins. Co. v. Wickham, 281 Mo. 300, 219 S.W. 967; Glaser v. Rothschild, 221 Mo. 209, 120 S.W. 1. (6) In their opinion, decision and judgment respondents have failed to consider and heed the unreasonable, arbitrary and unjust consequences of depriving one class of litigants of the right of appeal while at the time granting that right to another class, when the only difference is the amount involved in the controversy. State ex rel. Jamison v. Ry. Co., 300 S.W. 277; Bassen v. Monckton, 274 S.W. 407; Lumber Co. v. Ry. Co., 216 Mo. 672, 116 S.W. 1; Kane v. Ry. Co., 112 Mo. 39, 20 S.W. 532. (7) In their opinion, decision and judgment respondents have also failed to follow last controlling decisions of the Supreme Court, which hold that statutes governing appeals must be liberally construed. O'Malley v. Continental Life Ins. Co., 335 Mo. 1115, 75 S.W.2d 839; State ex rel. Russell v. Mueller, 332 Mo. 758, 60 S.W.2d 48; Buck v. St. Louis Union Trust Co., 267 Mo. 644, 185 S.W. 211; State ex rel. Title Guar. & Trust Co. v. Broaddus, 210 Mo. 16, 108 S.W. 544; State ex rel. Goodloe v. Wurdeman, 286 Mo. 153, 227 S.W. 64; Stid v. Ry. Co., 211 Mo. 418, 139 S.W. 172. (8) By transferring this appeal to the Kansas City Court of Appeals the Supreme Court inferentially held that court had jurisdiction. State ex rel. Pitcairn v. Pub. Serv. Comm., 90 S.W.2d 392; State ex rel. Gehrs v. Pub. Serv. Comm., 90 S.W.2d 390.

James P. Boyd and Daniel C. Rogers for respondents.

Respondents deny that under Section 1018, Revised Statutes 1929, an appeal is authorized to the various Courts of Appeals of this State or that said section applies to the Public Service Commission Law. 3 C. J., p. 316, sec. 29. We specifically call the court's attention to the fact that the only procedural part of the Public Service Commission Act passed in 1913, which has in nowise been amended by the Legislature of this State, is found in Article VI of such Act, beginning with Section 5229, Revised Statutes 1929 (Sec. 106 of original Act) and extending through and including Section 5238, Revised Statutes 1929 (Sec. 115 of original Act). Schuepbach v. Gas Co., 232 Mo. 611; Wilson v. School Township, 23 Mo. 417; Sheridan v. Fleming, 93 Mo. 325; State ex inf. v. Kansas City Gas Co., 254 Mo. 515; State ex rel. Hancock v. Spencer, 166 Mo. 286; State ex rel. Wells v. Hough, 193 Mo. 643; Dahlin v. Mo. Comm. for the Blind, 262 S.W. 421.

OPINION

Frank, J.

Mandamus to compel the Kansas City Court of Appeals to set aside its judgment dismissing the appeal in the case of State ex rel. Pitcairn et al. v. Public Service Commission of Missouri, to reinstate said cause on the docket and to hear and determine same.

One W. P. Sutton applied to the Public Service Commission for a certificate of convenience and necessity authorizing him to operate as a freight carrying motor carrier over an irregular route, pursuant to the provisions of the bus and truck law. The Wabash Railway Company though its receivers, Pitcairn and Nicodemus, protested. The commission heard the cause and granted the certificate of convenience and necessity as requested. The cause was taken to the Circuit Court of Cole County on writ of review, where the order of the commission was affirmed. The cause was then appealed to this court. We held in an opinion handed down on November 12, 1935, that this court did not have jurisdiction of the cause and accordingly transferred said cause to the Kansas City Court of Appeals. [State ex rel. Pitcairn et al. v. Public Service Commission of Missouri, 338 Mo. 180, 90 S.W.2d 392.] The Kansas City Court of Appeals dismissed the appeal on the alleged ground that it did not have jurisdiction of the cause.

The question of the Court of Appeals' jurisdiction is purely one of law, and must be determined from a proper construction of the constitutional and statutory provisions governing that question. Where a Court of Appeals refuses to take jurisdiction of a case because of a misconstruction of the law which governs such jurisdiction, mandamus will lie to compel such court to assume jurisdiction and proceed with the hearing of the cause.

Speaking to that question in State ex rel. Fleming v. Shackelford, 263 Mo. 52, 61-2, 172 S.W. 347-9, we said:

"If the lower court, upon a preliminary question of jurisdiction, which question of jurisdiction is to be determined from the law of the case, rather than the facts, resolves the question of jurisdiction against the applicant or plaintiff, and for that reason declines to hear the merits of the case, then mandamus will lie to compel such court to proceed, upon the merits, if we, under the law determine that such court possessed the jurisdiction."

Again in the case of State ex rel. General Motors Acceptance Corporation v. Brown et al., 330 Mo. 220, 48 S.W.2d 857, 859, we said:

"Where, as in this case, the question of jurisdiction is purely one of law, and the court misconstrues that law and dismisses the case for want of jurisdiction, a writ of mandamus will go to compel reinstatement of the case."

Numerous other cases to the same effect could be cited.

The jurisdiction of this court is fixed by the Constitution. (Sec. 12 of Art. 6, and Section 5 of Amendment of 1884 to said Art. 6.) All cases appealed from the circuit court which belong to the class of cases enumerated in said Section 12 of Article 6, come to this court. All other cases appealed from the circuit court go to the Court of Appeals. [Sec. 12 of Art. 6 and Secs. 1-3 and 5 of the Amendment of 1884 to Art. 6.] [State ex rel. Pitcairn v. Public Service Commission, 92 S.W.2d 881; Ward v. Consolidated School District et al., 320 Mo. 385, 7 S.W.2d 689; Village of Grandview v. McElroy, 318 Mo. 135, 298 S.W. 760; State ex rel. Blakemore v. Rombauer et al., Judges of the St. Louis Court of Appeals, 101 Mo. 499, 504, 14 S.W. 726.] As illustrative of what these cases hold, we quote from Ward v. Consolidated School District et al., supra, the following:

"The Supreme Court only has such appellate jurisdiction as has been specifically conferred upon it by the Missouri Constitution (Art. VI, Sec. 12, and Sec. 5 of the 1884 Amendment to Art. VI). In all cases, other than those specified in Section 12, Article VI, jurisdiction of appeals from the circuit court of the State resides in the several Courts of Appeals. [State ex rel. Rucker v. Hoffman, 313 Mo. 667, 288 S.W. 16.]"

Since the jurisdiction of this court as well as that of the Courts of Appeals is fixed by the Constitution, such jurisdiction cannot be controlled or changed by statute. [Authorities, supra.]

No one disputes the fact that this court did not have...