State v. Kansas City Gas Co.

• Decision Date: 24 December 1913
• Citation: 163 S.W. 854,254 Mo. 515
• Parties: STATE on inf. BARKER, Atty. Gen., ex rel. KANSAS CITY v. KANSAS CITY GAS CO.
• Court: Missouri Supreme Court

163 S.W. 854

254 Mo. 515

STATE on inf. BARKER, Atty. Gen., ex rel. KANSAS CITY v. KANSAS CITY GAS CO.

Supreme Court of Missouri.

December 24, 1913.

Rehearing Denied February 10, 1914.

1. COURTS (§ 209) — APPELLATE COURTS — ORIGINAL JURISDICTON—MANDAMUS.

In an original proceeding for mandamus, where the case was of grave import, and the Supreme Court, in setting aside an order to appoint a commissioner to take evidence, set the cause down for hearing on questions of law, reserving issues of fact, it is proper for the respondent to file with its return setting up the facts a motion to quash, although such practice is uncommon, and is applicable only to unusual cases.

2. MANDAMUS (§ 160)—ALTERNATIVE WRIT— AMENDMENT.

Under Rev. St. 1909, § 1864, providing that the provisions relating to amendments shall extend to writs of mandamus, an alternative writ may be amended where it is defective in matters of averment, such as alleging conclusions of law.

3. COURTS (§ 207)—STATE COURTS—JURISDICTION OF MISSOURI SUPREME COURT.

While the original jurisdiction of the Supreme Court over the extraordinary remedy of mandamus conferred by Const. art. 6, § 3, cannot be impaired by legislative action, yet the dominating question in the issuance of a writ of mandamus is whether it is warranted in the discretion of the court, and the writ may be refused if the statutes afford as adequate a remedy.

4. MANDAMUS (§ 7)—ISSUANCE OF WRIT.

While the writ of mandamus has lost some of its high prerogative quality, it is so far a

discretionary writ that it should be denied if, in the sound judicial discretion of the court, which means the legal discretion, it appears inexpedient to issue it.

5. MANDAMUS (§ 1)—NATURE OF REMEDY.

A writ of mandamus is a hard and fast unreasoning writ, and is reserved for extraordinary emergencies.

6. COURTS (§ 207)—ORIGINAL JURISDICTION— WRIT OF MANDAMUS.

The Public Service Commission Act (Laws 1913, p. 557) provides an elaborate system for the regulation of public utilities, particularly gas companies. It also provides for a public service commission which shall determine whether a gas company is serving its proper function, and an elaborate system of hearing and consideration by experts. Held that, in view of the fact that section 127 of the act provides that it shall be construed with a view to public welfare, the Supreme Court will refuse to take jurisdiction of a proceeding to compel a natural gas company by mandamus to furnish sufficient pressure during the winter months; the question being one involving a multitude of facts, which could be better handled by the commission.

Bond, J., dissenting.

In Banc. Original application by the State of Missouri, on the information of John T. Barker, Attorney General, at the relation and to the use of Kansas City, against the Kansas City Gas Company. On motion to quash. Motion sustained.

John T. Barker, Atty. Gen., and A. F. Evans, City Counselor, Willard P. Hall, and James W. Garner, all of Kansas City, for relator. Gage, Ladd & Small and Scarritt, Scarritt, Jones & Miller, all of Kansas City, for respondent.

LAMM, C. J.

To our alternative writ respondent made return, and to that return relator's reply came in. There is pending an application by relator for the appointment of a commissioner to take evidence, and make findings of fact and law. There are also pending respondent's motion to quash the alternative writ, and for judgment on the pleadings and admitted facts, as well as relator's motion to strike out the latter motion, and in aid of the application to appoint a commissioner.

I. Of the motion to strike out.

Respondent's return, in some material features, contains the same or equivalent matter as its motion to quash, and for judgment on the pleadings and admitted facts. Relator's motion to strike out raises a question of practice, viz.: Whether a motion to quash (cotemporaneous with a return in mandamus) is allowable practice. In other words, technically, can they stand together, does the return not waive the motion precisely as an answer waives a demurrer? The question must be ruled with the following in mind, viz.: In this case we made an order to appoint a commissioner to take evidence, and report his findings of fact and law; but, on being further advised, we set that order aside on a showing made. Thereby it was made to appear, first, that questions of law were in the case on the very face of the alternative writ, return, and reply that, if ruled in whole or part in matter of substance for respondent, would result in quashing such writ; second, it was made to appear by certain agreements of counsel in writing that (at least by implication) they took the same view of the matter, and joined in invoking a judgment on law issues. It is not necessary for us to say whether that implication, now questioned by learned counsel for relator, was just or not. This, because we, by our further order, set the cause down for a hearing on questions of law, reserving issues of fact (if reached) for proceedings at the foot of our judgment on issues of law. It must be admitted such course is not a favored one. It splits a cause into two hearings, and for obvious reasons we have been inclined to allow only one. But, contra, such course cannot be said to be unreasonable in a grave matter, as here, where the case may fatally break on a law point necessarily involved, where an argument on the law seems desirable, and where great expense, delay, and labor attend a hearing on the facts, all of which expense, labor, and time may be wasted, if the cause eventually ride off on a law point springing on pleadings and admissions. Nor can such course be held to be without precedent. State ex inf. Hadley, Attorney General, v. Delmar Jockey Club, 200 Mo. 34, 92 S. W. 185, 98 S. W. 539.

True it is that in the Delmar Jockey Club Case there was no return raising issues of facts when the demurrer, heard on briefs and argument, was ruled, and that leave was given to file one thereafter. But that concession does not answer the practical question, viz.: Shall this court, in any case on any showing made of emergency and gravity, hold two hearings, one on law issues, and one on issues of fact? The Delmar Jockey Club Case is a precedent on that question—a precedent to be followed only with nice discrimination, to meet the mold and pressure of the concrete case, and not mechanically and automatically in all cases.

Look at the matter from another angle. The practice has grown up in this court of raising questions of law side by side with issues of fact in the return in mandamus. We need not stop to discuss that practice from the standpoint of either reason or authority. In this case we take it as we find it, and let it go at that. Respondent followed that practice and, inter alia, in its return challenged relator's right to a writ on certain issues of law. Nothing elsewhere in the return or in the reply waived those issues or set them at rest. The so-called motion to quash, and for judgment on the pleadings and admitted facts, in effect, makes profert of them in a bundle, and invokes a ruling. Now, it must be plain that, either by virtue of the motion, as a motion, or by virtue of issues of law being in the case on the return, at some time and in some form those issues must either be threshed out and settled or blinked. In this case we ordered them set down for a hearing separately from issues of fact. This for reasons then and now appearing sufficient. We stood informed at the time that the issues would be presented by a motion to quash, and for judgment on the pleadings. Having set down the hearing with that knowledge, our order is in the nature of a former ruling on the real question underlying the motion to strike out. So, too, the case is briefed and presented in obedience to that order. In that view of it the cause has progressed beyond the point where we should lightly tread back and overturn that order. We are of opinion that we need not rule in the instant case on the one narrow technical question whether a motion to quash the writ can live in the face of a return raising only issues of fact.

In view of all the premises, the questions here are much broader, as indicated, and should be ruled against relator.

We leave the matter with a cautionary observation in order that the ruling just made may not rise to vex us in the future, viz.: We do not rule that, if a respondent should stand here on a motion to quash our provisional writ, and for judgment on the pleadings and admitted facts, in a mandamus suit, such respondent would be allowed as of course (if cast on his motion) to then have a hearing on the merits. Such ruling would invite a swarm of interlocutory hearings consuming time, breeding delay, and would be found in practice to be otherwise than useful. All we rule is that it is not beyond all precedent to segregate one hearing from the other in a case crying out for it, and permit both if, in the exercise of a sound discretion, both appear sensible. This ruling disposes of the concrete question here on this record.

Let the motion to strike out be overruled.

II. Of the motion to quash our alternative writ, and for judgment on the pleadings and admitted facts.

(a) There are a group of questions raised on this motion that go to the form of the alternative writ, or to mere amendable matter. For instance: Generality of language (following the petition therein); lack of precision in averment; failure to show a definite, clear, explicit legal right; failure to aver there is no other adequate remedy; dealing in mere conclusions of law; failure to allege that, under existing circumstances, and under the franchise of respondent, the gas service required of it by the writ is just and reasonable, or possible and within respondent's power; the affirmative showing made by the pleadings (and not contradicted) that the right to a writ is at best doubtful is beyond the...