State v. Kansas City Court of Appeals

• Decision Date: 15 June 1891
• Citation: 105 Mo. 299,16 S.W. 853
• Parties: STATE ex rel. DUGAN v. KANSAS CITY COURT OF APPEALS et al.
• Court: Missouri Supreme Court

16 S.W. 853

105 Mo. 299

STATE ex rel. DUGAN v. KANSAS CITY COURT OF APPEALS et al.

Supreme Court of Missouri.

June 15, 1891.

SUPREME COURT — EXCLUSIVE JURISDICTION — CONSTITUTIONAL QUESTION — FORMER DECISIONS.

Const. Mo. Amend. 1884, art. 12, c. C, § 5, provides that the supreme court shall have exclusive jurisdiction of appeals from the circuit court, and the courts having jurisdiction pertaining to circuit courts, in all cases "involving the construction of the constitution of the United States or this state." Held that, where one accused of violating the local option law defends on the ground that the law is unconstitutional, the court of appeals has no jurisdiction, notwithstanding the supreme court has already declared the law valid.

In banc. Application for writ of prohibition.

S. T. White, for relator.

MACFARLANE, J.

This is a proceeding by prohibition against the judges of the Kansas City court of appeals, to restrain them from hearing and determining a certain cause in which the state of Missouri is respondent, and relator, John Dugan, is appellant, and which cause is now pending in said court of appeals upon the appeal of relator from a judgment and sentence of the criminal court of Johnson county. An alternative writ was issued from this court, and respondents have made return thereto. The writ charges, and the return admits, that relator was indicted, tried, and convicted in the criminal court of Johnson county for the violation of what is popularly known as the "local option law," in the city of Warrensburg, in which city it was charged that said law was in force; that, upon his trial in said court, relator defended upon the ground that said local option law was repugnant to, and in violation of, the constitution of the state of Missouri, and that the constitutionality of the law was fully and fairly questioned upon the trial; that upon his conviction defendant, having filed in said criminal court the proper affidavit, prayed that an appeal be granted him to this court, which was denied him, and the transcript of the record and proceedings were ordered to be forwarded to the Kansas City court of appeals, which was done; and that respondents, the judges of said court, have taken cognizance of said appeal, with a view of hearing and determining the same. Relator insists that the Kansas City court of appeals has no jurisdiction of the appeal, for the reason that the construction of the constitution of this state is involved therein. Without undertaking to consider and point out specifically the provisions of the constitution, which are fairly involved in the record in this case, as appears from the writ and return, it is sufficient to say that the construction of this statute and its constitutionality have been considered with great care by this court in the cases of State v. Pond, 93 Mo. 606, 6 S. W. Rep. 469, and Ex parte Swann, 96 Mo. 44, 9 S. W. Rep. 10, from which decisions it appears that, when these cases were before the court, it was not only a question of serious consideration whether the act in question was constitutional, but there was a difference of opinion among the judges thereto. There can be no doubt, in the light of these decisions, that the record in this case raises questions which, in their first...