State v. Grimm

• Citation: 220 Mo. 483,119 S.W. 626
• Parties: STATE ex rel. UNION ELECTRIC LIGHT & POWER CO. v. GRIMM, Circuit Judge.
• Decision Date: 22 May 1909
• Court: United States State Supreme Court of Missouri

119 S.W. 626

220 Mo. 483

STATE ex rel. UNION ELECTRIC LIGHT & POWER CO. v. GRIMM, Circuit Judge.

Supreme Court of Missouri.

May 22, 1909.

1. COURTS (§ 207)—ORIGINAL JURISDICTION OF SUPREME COURT—MANDAMUS.

Under Const. art. 6, § 3 (Ann. St. 1906, p. 214), conferring on the Supreme Court a general superintending control over all inferior courts, and power to issue writs of habeas corpus, mandamus, etc., mandamus lies to an inferior court refusing to perform some act which by law it has jurisdiction and is required to perform, where relator has a clear legal right to have the court exercise its jurisdiction, and has no other adequate remedy therefor.

2. MANDAMUS (§ 176)—SCOPE OF RELIEF.

While the Supreme Court has no power in a mandamus proceeding to direct what the ruling of the circuit court should be, it is its duty to require the latter to exercise its jurisdiction.

3. QUO WARRANTO (§ 52)—PLEADINGS—DEMURRER TO INFORMATION.

Under Rev. St. 1899, § 4462 (Ann. St. 1906, p. 2446), providing that the court in which any information is exhibited shall allow the relator and defendant such convenient time to answer, reply, or demur as shall seem just, an information in the nature of quo warranto may be demurred to.

4. QUO WARRANTO (§ 48) — PLEADINGS — BURDEN OF PROOF.

Where usurpation of a public office or a franchise is claimed by the state and an information is filed by the Attorney General to test the right to such office or franchise, it is only necessary to allege generally that the person holding the office or enjoying the franchise does so without lawful authority, and in such case, as against the state, it devolves on defendant to show a complete legal right to enjoy the privileges in question.

5. QUO WARRANTO (§ 48)—PLEADINGS.

Where an information in quo warranto avers that respondent has a corporate existence, and the purpose of the proceeding is to forfeit its charter for nonuser, misuser, or usurpation of powers, such grounds of forfeiture must be specifically pleaded.

In Banc. Mandamus by the State, on the relation of the Union Electric Light & Power Company, against J. Hugo Grimm, one of the judges of the circuit court of the city of St. Louis. Writ granted.

Boyle & Priest and T. E. Francis, for relator. F. G. Farris, for respondent.

GANTT, J.

This is an original proceeding in this court to obtain a writ of mandamus against the respondent, one of the judges of the circuit court of the city of St. Louis, requiring him to set aside and annul an order made by the court over which he presided, striking from the files a demurrer filed by the relator to an information filed against it by the circuit attorney of the city of St. Louis, and to reinstate said demurrer, and to proceed to consider and determine the same in accordance with law. To this application there has been filed a demurrer by Judge Grimm. Briefly stated, the alternative writ alleges that relator, the Union Electric Light & Power Company, is now, and at all times mentioned in the said writ was, a corporation duly organized and existing under and by virtue of the laws of the state of Missouri; that respondent Judge Grimm is, and since the 4th day of January, 1909, has been, one of the duly elected, qualified, and acting judges of the circuit court of the city of St. Louis; that on May 18, 1907, the circuit attorney of the city of St. Louis exhibited in the circuit court of the said city an information in the nature of quo warranto against the said Union Electric Light & Power Company, and the said cause was duly assigned to Division No. 2 of said court for hearing and determination; that thereafter in due time, and by leave of court, the respondent in that proceeding, the relator herein, filed a demurrer to the said information, which was regularly argued and submitted, and which was thereafter, by said court, at that time presided over by the Honorable Daniel G. Taylor as judge, sustained; that thereafter the informant moved the court to set aside the order sustaining the demurrer for the reason assigned that a demurrer will not lie to an information in the nature of quo warranto; that this motion was sustained in part by said court over which respondent Judge Grimm presided at the time, and the order sustaining the demurrer was set aside; that thereafter the informant renewed his motion to strike the demurrer from the files, which last motion was by the court, presided over by respondent Judge Grimm, sustained on February 5, 1909, on the ground, and for the sole reason, that a demurrer is an improper pleading, and does not lie to an information in the nature of quo warranto. The information in the circuit court which is set out in full in the alternative writ in this proceeding did not plead facts upon which judgment of ouster was sought in general terms, and call upon the defendant therein to show by what authority it exercised the rights therein, but set up specific grounds for forfeiture, namely, that by means of three successive consolidations four corporations, which had theretofore been engaged in furnishing electric light and power in the city of St. Louis in competition with each other, became merged into one corporation, the Union Electric Light & Power Company, which consolidations, it is alleged, were unlawful, inasmuch as it was alleged they resulted in creating a virtual monopoly in violation of the anti-trust act. Upon argument in this court two questions were discussed: First. Is mandamus the proper remedy under the facts? Second. Did the circuit court correctly rule that a demurrer will not lie in any case or at least in this particular case to an information in the nature of quo warranto?

1. By section 3 of article 6 of the Constitution of Missouri (Ann. St. 1906, p. 214) "a general superintending control over all inferior courts and the power to issue writs of habeas corpus, mandamus, quo warranto, certiorari and other remedial writs and to hear and determine the same," is conferred upon this court. The writ lies from this court to an inferior court when the latter refuses to perform some act which under the law it has jurisdiction and is required to perform, and the relator has a clear legal right to have such inferior court exercise its jurisdiction, and has no other adequate remedy therefor. In Ex parte Parker, 120 U. S. 737, 7 Sup. Ct. 767, 30 L. Ed. 818, Mr. Justice Matthews said: "The writ properly lies in cases where the inferior court refuses to take jurisdiction, where by law it ought so to do, or where, having obtained jurisdiction in a cause, it refuses to proceed in the due exercise thereof." In Ex parte Lowe, 20 Ala. 330, it was ruled that, if an inferior court makes an order which is in plain violation of the legal rights of one of the parties, and by virtue of such order refuses to proceed further in the case, mandamus will go to compel the vacation of such order. This court has recently had occasion to determine its powers in this regard and in the cases of State ex rel. v. Smith, 172 Mo. 446, 72 S. W. 692, and State ex rel. Smith, 172 Mo. 618, 73 S. W. 134, required the Kansas City Court of Appeals to reinstate an appeal which the lower court had dismissed because of a supposed defect in an applicant's abstract of the record, and in State ex rel. v. Broaddus, 210 Mo. 1, 108 S. W. 544, this court required the Kansas City Court of Appeals to reinstate an appeal dismissed by the latter court because of a supposed defect in an affidavit for appeal; the grounds of these decisions being that the refusal of the Court of Appeals to hear the appeal was a refusal to entertain and exercise jurisdiction conferred upon it by law. In State ex rel. v. Dearing, 173 Mo. 492, 73 S. W. 485, the circuit court struck out certain exceptions to a commissioner's report in a condemnation proceeding, and ...