State v. Nortoni

• Decision Date: 18 December 1906
• Citation: 201 Mo. 1,98 S.W. 554
• Parties: STATE ex rel. SALE et al. v. NORTONI et al. (three cases).
• Court: Missouri Supreme Court

98 S.W. 554

201 Mo. 1

STATE ex rel. SALE et al. v. NORTONI et al. (three cases).

Supreme Court of Missouri.

December 18, 1906.

1. COURTS—COURT OF APPEALS—JURISDICTION —SPECIAL WRITS—POWER TO ISSUE.

Const. 1875, art. 6, § 12, as amended in 1884, provides that the St. Louis Court of Appeals may issue writs of certiorari, quo warranto, etc. and that appeals shall lie to and writs of error issue from the Supreme Court in certain cases before the Court of Appeals; that in all cases reviewable by the Supreme Court writs of error shall issue from it directly to the circuit courts and courts having jurisdiction thereof, and in all cases where appeals shall lie directly to the Supreme Court that court shall have exclusive jurisdiction of such writs of error and appeals, and shall in all cases exclusively exercise superintending control over such trial courts; and that the Supreme Court shall have superintending control over courts of appeals by mandamus, prohibition and certiorari, etc. Held, that the St. Louis Court of Appeals had no jurisdiction to issue writs of certiorari in a case in which it had no appellate jurisdiction, but which was appealable direct to the Supreme Court.

2. SAME.

Const. 1875, art. 6, § 12, authorizing the St. Louis Court of Appeals to issue original remedial writs and conferring on such courts superintending control over inferior courts of record, vests in such court jurisdiction of such matters only in cases where the jurisdiction of the Court of Appeals is co-ordinate with that of the Supreme Court.

3. PROHIBITION—COURTS—JURISDICTION.

Where the St. Louis Court of Appeals issued a writ of certiorari to review the action of the circuit court in a case where it appeared from the return that the constitutionality of a statute was involved, and that the Court of Appeals, therefore, had no jurisdiction to hear the case on appeal or writ of error, a writ of prohibition would be issued by the Supreme Court to restrain the Court of Appeals from hearing an issue raised on the writ of certiorari.

In Banc. Applications for prohibition by the state on relation of Moses N. Sale and others against Albert D. Nortoni and others, judges of the St. Louis Court of Appeals. Writ granted.

Bond, Marshall & Bond, for relators. James F. Green, Alphonso Howe, and J. W. Jamison, for respondents.

BURGESS, J.

These three cases present the same issues, and will, therefore, be considered together. This is an original proceeding by prohibition, instituted by two of the judges of the circuit court of the city of St. Louis, namely, Moses N. Sale and Jesse McDonald, judges of divisions No. 7 and 3 of said court, with whom are joined private relators interested as parties litigant in the litigation involved against respondents, Nortoni, Bland, and Goode, judges of the St. Louis Court of Appeals. A preliminary rule in prohibition was issued on the 10th day of September, 1906, by two members of this court, returnable on the 9th day of October, 1906. The respondents have filed their return to said preliminary writ, and the relators have filed their reply to said return, and a motion for judgment on the pleadings.

The petition, among others things, alleges that in October, 1904, the private relators were elected members of the Republican city central committee of the city of St. Louis, pursuant to the provisions of the act of March 13, 1901 (Laws 1901, p. 149) relating to primaries in cities having over 300,000 inhabitants, each having been elected by delegates from the several wards, when assembled in delegate convention, as members of said committee from each of the wards of the city, and as such were entitled to be and remain such members for a term of two years thereafter; that thereafter and before August 13, 1906, the majority of the members of said city central committee, unlawfully, and without any authority or jurisdiction whatever, expelled them (the minority of said committee) from membership therein, and have ever since excluded them from their rights, privileges, and franchises as such; that, on the 13th day of August, 1906, the relator, Jesse A. McDonald, judge as aforesaid, granted unto said private relators herein a writ of certiorari directed against the majority members of said committee, commanding them to certify to said circuit court in division No. 7, on or before Tuesday, September 4, 1906, all of the acts, proceedings, resolutions, and records of said committee bearing in any manner upon the expulsion of said private relators as such members and officers, and commanding them in the meantime to desist from interfering with the relators in any manner whatever in the discharge of their rights as members of said committee; that, thereafter, on the 4th day of September, 1906, said majority members of said committee appeared as so commanded, and filed a demurrer to the petition, setting up, among other things, that section 23 of the primary election law of 1901, Laws 1901, p. 162, violates section 1 of article 6 of the Constitution of Missouri; that thereupon said Judges Sale and McDonald heard said demurrer, fully argued by counsel on both sides, and took the same under advisement until the 5th day of September, 1906, at which time they overruled said demurrer, and granted the respondents therein until Thursday, September 6th, to file a return to the order of certiorari, which said respondents did at said time, and by which return they admitted that relators and each of them were elected members of said Republican city central committee at a delegate convention of the Republican Party of the city of St. Louis, on the 10th of October, 1904, as alleged in relator's petition, but deny that they were elected in accordance with the provisions of said primary election law, because they were not elected direct by and at a primary election, and further admitted that relators were expelled by them from said committee as charged, and further pleaded that section 23 of the said primary election law, by virtue of which the writ of certiorari was issued, violates section 1 of article 6 of the Constitution of Missouri, in that it pretends to confer authority upon judges of the Supreme Court, courts of appeals, and judges of the circuit court to summarily review certain acts of political committees and election officers, whereas said section 1 of article 6 of said Constitution confers all judicial power upon the courts of the state, and not upon the judges of the courts, and further pleaded that section 23 is unconstitutional and void, for the reason that no provision is made thereby for any definite or certain form of notice of process to be served upon defendants by which they may be brought into court, but that, under said section, the various judges of the courts are authorized to designate what notice of process shall be sufficient; that thereupon respondents also filed a motion to quash the writ of certiorari, alleging as grounds therefor, inter alia, "that section 23 of the primary election law is unconstitutional and void because it undertakes to confer upon judges of courts powers which by section 1 of article 6 of the Constitution of Missouri are exclusively vested in courts of this state;" that thereupon the relators therein filed a motion to quash the judgment or order of expulsion aforesaid, alleging as grounds therefor, inter alia, that the said committee had no power, authority, or jurisdiction under the laws of this state, and particularly under said primary election law (Acts 1901, p. 149) to enter such an order, and because said order and judgment did not constitute due process of law and violated section 30 of article 2 of the Constitution of Missouri, also violated the fourteenth amendment to the Constitution of the United States; that thereupon said court judges fully heard counsel for relators and respondents upon said motions to quash as aforesaid, and took the same under advisement until September 7th, at 10 o'clock a. m.; that immediately preceding the reconvening of said circuit court on the 7th day of September, 1906, said Judges Sale and McDonald were served with a preliminary rule in prohibition issued by Hon. Albert D. Nortoni, one of the judges of the St. Louis Court of Appeals, during the vacation of said court, whereby they were commanded to appear before the St. Louis Court of Appeals on Monday, September 24, 1906, and show cause why a writ of prohibition should not be issued against them as prayed, and commanding them, in the meantime, to desist from further considering, passing upon or taking cognizance of the proceedings in certiorari aforesaid.

The petition further charges that said Albert D. Nortoni was without power, authority, or jurisdiction to issue said preliminary rule in prohibition, and that the St. Louis Court of Appeals is without jurisdiction to be heard or determine said matters and things or said controversy, and that said Court of Appeals has no appellate jurisdiction over the certiorari case aforesaid and no original jurisdiction by prohibiting, or otherwise to interfere with, the trial and determination of said certiorari case by the said circuit court, for the reason that, in said certiorari case, both parties had raised and insisted upon constitutional questions which were primarily cognizable by the circuit court, and whose rulings in that record were only subject to review by the Supreme Court of Missouri, and further showed that said Nortoni, in issuing said preliminary rule, violated rule 26 of the St. Louis Court of Appeals (67 S. W. x) which provides as follows: "Now, will any writ of prohibition be issued in any case whereof the Supreme Court has appellate jurisdiction."

On the return day of said writs, respondents filed returns thereto in which they admit that heretofore, to wit, on the 7th day of September 1906, respondent Nortoni, as judge of the St. Louis Court of Appeals, in vacation of said court, did grant, and cause to be issued, a...