State v. Valliant
Decision Date | 04 December 1894 |
Citation | 28 S.W. 586,123 Mo. 524 |
Parties | STATE ex rel. WALBRIDGE, Mayor, v. VALLIANT, Judge. |
Court | Missouri Supreme Court |
For majority opinion, see 27 S. W. 379.
Unable to concur in the majority opinion, I will give a résumé of the pertinent facts relating to the rise, progress, and ultimate demise of this case, and then set forth some reasons which occur to me why the action of the majority in quashing the writ of certiorari should be held unwarranted on the facts and on the law. At the outset it may be remarked that no return has been made to the writ herein. This case had its origin in charges preferred by Robert E. McMath, president of the board of public improvements, against George B. Reid, commissioner of public buildings, which charges showed upon their face that Reid had been guilty of certain flagrant derelictions from official duty. Of these charges, Walbridge, the mayor, had duly notified Reid on August 14, 1893, and was about to proceed to try him in a summary way, as pointed out by and provided for in the charter of the city, and would have done so, but for the interposition of original proceedings on behalf of Reid, instituted in division No. 2 of this court, in which a rule was granted on the mayor to show cause why a writ of prohibition should not issue to prevent him from trying Reid on the charges preferred. Upon the hearing we held that the mayor was in the right, and within the bounds of his duty, in proceeding to try Reid. See State v. Walbridge (Mo.) 24 S. W. 457. And in thus holding we did but follow the earlier case of Manker v. Faulhaber, 94 Mo. 430, 6 S. W. 372, which upheld the power of the mayor summarily to try and to remove an unworthy official. Thereupon Reid moved for a rehearing, and to transfer the cause to the court in banc, whereby the final determination of the cause was delayed until the next term thereafter, when the motions were denied. After a delay of some five months from the time Reid was notified, produced by prohibitory proceedings instituted by Reid, the mayor was allowed to proceed to bring the delinquent official to trial, which resulted in the conviction of Reid on ample evidence of most flagrant official delinquencies, as specified in the charge preferred by McMath. Indeed, the answer of Reid to those charges substantially admits their truth, and then undertakes to justify his action on the ground that, though he violated plainly worded ordinances of the city, yet that he had the right to do so in the exercise of "his discretion as an architect." Not only does the answer of Reid make these virtual admissions of his guilt, but the evidence shows in the clearest possible light that in defiance of the plainest prohibitions of the city charter and ordinances he altered contracts made with the city and substituted clauses and specifications of his own therefor, and, after doing this, he certified that the work contracted for, and which had not been done, had been done, and drew a voucher for the whole contract price. The trial of Reid on the charges preferred ended on January 31, 1894, and resulted, of course, in a richly deserved judgment of removal, and the mayor thereupon issued his notice of the order of removal to Reid, which was served on the same day, and then, complying with section 7 of article 4 of the city charter, the mayor on the same day notified the city council that he had removed Reid, stating the causes therefor. Under the section mentioned it was the duty of the council, upon being thus notified, to fill the vacancy created by the order of removal. This was all that section 7 aforesaid required.
On the 2d day of February, 1894, the circuit court issued its writ of certiorari to the mayor, and entered an interlocutory order or judgment prohibiting the mayor from taking any further steps in the matter of the removal of Reid until the judgment of the court should be had in the premises, and required the relator, Reid, in that proceeding, "to give bond" "conditioned according to the provisions of section 2249, Rev. St. 1889, in relation to bonds in case of appeals." Bond was accordingly given, approved, and filed. The section in question relates solely to bonds being given when appeals are taken from a final judgment of a circuit court to some appellate court; it has no other application or meaning. Two writs of certiorari were known at common law. The former took up the record or proceedings at any stage of the case to the court from whence the writ issued, the latter after final judgment, and was therefore in the nature of a writ of review. We have in this state no statutory regulation of such writs save in the case of forcible entry and detainer, and of consequence we are left to the rules of the common law as to the manner of the issuance of the writ and all of its incidents and consequences. "It was a distinguishing feature of this remedy at common law [certiorari] that it was the appropriate writ for the removal of a cause before judgment, while a writ of error removed it afterwards." 2 Spel. Extr. Relief, §§ 1894, 1914, 1917. 1 Tidd, Pr. (4th Am. Ed.) 398; Goodright v. Dring, 2 Dowl. & R. 407; Cross v. Smith, 2 Ld. Raym. 836; Com. Dig. (4th Ed.) tit. "Certiorari." In Hannibal & St. J. R. Co. v. State Board of Equalization, 64 Mo. loc. cit. 308, it is said: "We have no statute in this state regulating the practice in proceedings by certiorari, and are to look to the common law for a guide in such cases." To the same effect, see Saline Co. Subscription Case, 45 Mo. loc. cit. 53. Adopting this undoubtedly correct view that the common-law rule must prevail where none is provided by statute, the right of relator to sue out the present writ before any final action of the circuit court cannot be doubted. This was the course pursued in Rector v. Price, 1 Mo. 198, one of our earliest reported cases, where certiorari was employed as a remedial process, when the language of our constitution was the same on the subject of extraordinary writs as it is now, to wit: Article 6, § 3. And in that case reference was made to this organic provision, and reliance had on it. Numerous instances are to be found in our Reports where this "superintending control" has been exercised by this court in conformity to its specifically prescribed constitutional duty. Some of these instances, in addition to the one just cited, will now be given, where this court has exercised its original jurisdiction.
Thus, in certiorari: Railroad Co. v. Morton, 27 Mo. 317, — issued to review the finding of commissioners in a railroad condemnation case. Owens v. Andrew County Court, 49 Mo. 375, — issued to review the finding of the county court in the matter of the settlement of the collector for Andrew county. Hannibal & St. J. R. Co. v. State Board of Equalization, 64 Mo. 294, — issued to review the action of the state board of equalization in assessing the property of the railroad company. In re Saline Co. Subscription, 45 Mo. 52, — issued to determine the validity of a subscription by the Saline county court for stock in the Louisiana & Missouri River Railroad Company. Phelps Co. v. Bishop, 46 Mo. 68, — issued to determine the validity of a judgment rendered by the county court in favor of Bishop. Railway Co. v. Young, 96 Mo. 39, 8 S. W. 776, — certiorari to remove proceedings from a county court in regard to opening a road. See, also, the recent case of State v. Slover, 113 Mo. 202, 20 S. W. 788, where this court, by its writ of certiorari, reviewed the action of the circuit court in removing a stenographer.
Thus in prohibition: Where the circuit court attempted to exercise judicial authority over which it had no jurisdiction, this court restrained it by a writ of prohibition. Vitt v. Owens, 42 Mo. 512. The writ of prohibition is issued to inferior courts to prevent the wrongful assumption or excess of jurisdiction. This was done by this court in State v. Clark County Court, 41 Mo. 44. State v. Smith, 104 Mo. 419, 16 S. W. 415; State v. Rombauer, 104 Mo. 619, 15 S. W. 850, and 16 S. W. 502; Id., 105 Mo. 103, 16 S. W. 695; State v. Withrow, 108 Mo. 1, 18 S....
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