State v. Dawson

• Citation: 284 Mo. 427,224 S.W. 824
• Decision Date: 12 July 1920
• Docket Number: No. 21878.,21878.
• Parties: STATE ex rel. ALLEN, Circuit Judge, et al. v. DAWSON, Circuit Judge, et al.
• Court: United States State Supreme Court of Missouri

224 S.W. 824

284 Mo. 427

STATE ex rel. ALLEN, Circuit Judge, et al. v. DAWSON, Circuit Judge, et al.

No. 21878.

Supreme Court of Missouri, in Banc.

July 12, 1920.

Motion for Rehearing Denied October 1, 1920.

Original proceeding in prohibition by the State of Missouri, on the relation of Thomas B. Allen and others, Judges of the Circuit Court of Buchanan County, Mo., to prohibit Hon. John M. Dawson, Circuit Judge, and others, from entertaining jurisdiction in a certain injunction suit. Rule made absolute.

This is an original proceeding in prohibition, whereby relators (the three circuit judges of Buchanan county), seek to prohibit Hon. John M. Dawson, sitting as circuit judge of the circuit court of Buchanan county, from entertaining jurisdiction in a certain injunction suit now pending in said court, on the ground that said circuit court has no jurisdiction of the subject-matter of said suit.

The injunction suit was instituted by two of the judges of the county court of Buchanan county, and Buchanan county, as plaintiffs, against the three circuit judges of said county (the three relators herein) as defendants, and, in substance, alleged:

First. That by the terms of act of the General Assembly (Laws 1919, page 670) "it is made the duty of a majority of the judges of the circuit court of Buchanan county, Missouri, to fix the number of deputies in each of the offices of Buchanan county, Missouri, * * * and to classify such deputies and assistants into classes A and B as provided" in said law.

Second. That said circuit judges are undertaking to act under said law to fix the number of deputies in said county offices, and to classify them, and that unless restrained will do all the things required of them by said law.

Third. That said law is in conflict with the Constitution of the state of Missouri, in that: (a) It violates section 1 of article 6, because the power conferred upon said circuit judges by said statute is not a judicial power; (b) it conflicts with section 22 of article 6 because it invests the circuit judges with jurisdiction over appointive offices; (c) it conflicts with section 36 of article 6, which gives to county courts the right to transact all county business, and that said act affects the amount of county revenues which is to be paid for the employment of deputies in the county offices; (d) it conflicts with section 28 of article 4, in that the title to said act does not clearly express the general contents thereof, and said act contains more than one subject; (e) it violates article 3, because it does not keep separate the three departments of state government.

Fourth. That plaintiffs have no adequate remedy at law for the purpose of enabling them to exercise proper control over the affairs of the county in the respect above stated.

The prayer of the petition asks that the defendants be permanently enjoined from performing any of the privileges or duties provided by said act.

The defendants answered in the injunction suit, admitting that, unless enjoined, they will perform the duties imposed upon them by said act, deny that said act is unconstitutional, and further allege "that plaintiffs have no right or power to institute this suit; that said suit has not been instituted by any person having authority to institute such suit; that no property or property right of any or all of said plaintiffs is affected in any way whatever by said act, whether said ad be held to be constitutional or otherwise, and the petition herein shows that the plaintiffs are not entitled to any injunctive or other equitable relief and "defendants deny the right and power and jurisdiction of this court to interpose in this case for the protection or regulation of rights which are merely political, and where no civil or property right is involved."

All of the judges of the circuit court of Buchanan county, being parties to the injunction suit, and therefore disqualified to try the case, Hon. John M. Dawson, judge of the Fourth judicial circuit, was called in to sit in the case. The act of 1919 (which is intended to apply to counties which now contain or may hereafter contain a city of 75,000 inhabitants and less than 200,000 inhabitants) provides:

"The collector of revenue, clerk of the circuit and criminal courts, clerk of the county court, assessor, recorder of deeds, county treasurer, and any other county officer in the discretion of the majority of the circuit judges of the county, shall each be entitled to such a number of deputies and assistants, to be appointed by said county officer as the majority of the circuit judges of the county shall deem necessary for the prompt and proper discharge of the duties of their various offices, and such deputies and assistants shall be divided into classes as follows, and be paid in the same manner as the officers: Class A, assistants or deputies; class B, office clerks and copyists. Class A shall be paid fifteen hundred dollars per year. Class B shall be paid twelve hundred dollars per year. The decision of such majority of circuit judges to be in writing, specifying the number of deputies and assistants for each officer and their classes, and spread upon the record of the county court.

"Approved May 26, 1919."

Strop & Mayer, of St. Joseph, for relators.

Culver & Phillip and Randolph & Randolph, all of St. Joseph, for respondents.

WILLIAMS, J. (after stating the facts as above).

I. A mere reading of the petition filed in the injunction suit discloses that no property rights whatever are in any manner sought to be protected, nor does the petition allege, or attempt to allege, that any property right has been violated. It merely seeks to enjoin the three persons named from performing the right, duty, or privilege conferred upon the majority of them by the act of 1919, supra, on the sole ground that said act is unconstitutional in the respects mentioned.

It will thus be seen that the injunction suit is, to say the least, unique. We are cited to no case holding that a court of equity has jurisdiction to issue an injunction under such conditions, nor has diligent search upon our part disclosed such a case. The facts alleged, or attempted to be alleged, in the petition, certainly do not invoke any of the recognized heads of equity jurisdiction.

On the other hand it is a well-recognized rule that a court of equity has no jurisdiction to restrain acts which are merely political in their nature and effect. State ex rel. v. Aloe, 152 Mo. 466, loc. cit. 480, 54 S. W. 494, 47 L. R. A. 393; 4 Pomeroy's Equity Jurisprudence (4th Ed.) pars. 1743, 1746, and cases therein cited; 10 R. C. L. 342, 343; 1 High on Injunction, § 20b; 22 Cyc. 757.

The facts alleged, or attempted to be alleged, in the petition in the injunction suit disclose the violation of no right other than a purely political one, and, since no facts are alleged which invoke any of the different grounds of equity jurisdiction, it clearly follows under the numerous authorities above cited that the circuit court in the case at bar is without jurisdiction to grant the injunctive relief prayed.

II. Neither are we able to agree with respondent that the plaintiffs in the injunction suit have no adequate remedy at law, as is alleged in their petition for the injunction. On the other hand, we are of the opinion that an adequate legal remedy is furnished by a proceeding in quo warranto.

It is true that title to an office is not involved because the act of 1919, supra, does not create, or undertake to create, a public office. It merely confers, or attempts to confer, upon certain designated persons certain privileges, rights, and duties by them to be performed. These privileges and powers are directly granted by the sovereign state by the legislative act in question, and would not exist but for said grant.

Our statute on quo warranto (section 2631, R. S. 1909) includes every case where "any person shall usurp, intrude into or unlawfully hold or execute any office or franchise." We are of the opinion that the right given by the act of 1919, supra, to the majority of the judges of the circuit court of Buchanan county to determine the number and to classify the deputies to be employed in the county offices of said county is a franchise, within the meaning of the above-mentioned statute.

It is true that the great majority of quo warranto cases dealing with franchise rights are cases which deal with corporation franchises. But there...