Tackett v. Vogler

• Decision Date: 30 April 1885
• Citation: 85 Mo. 480
• Parties: TACKETT, Administratrix, v. VOGLER, Appellant.
• Court: Missouri Supreme Court

85 Mo. 480

TACKETT, Administratrix,

v.VOGLER, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

AFFIRMED.

C. E. Small and R. H. Field for appellant.

(1) The circuit court had no jurisdiction of the amount involved in this cause. Acts 1873, 253 and 255; Hunt v. Hopkins, 66 Mo. 98; Stamps v. Bridwell, 57 Mo. 22; Williams v. Payne, 80 Mo. 409. (2) The circuit court erred in refusing to sustain defendant's demurrer to the evidence; the ordinance should have specified the materials to be used in the construction of the street, in making fills and embankments. Richardson v. Haydenfeldt, 46 Cal. 68; People v. Clark, 47 Cal. 456; Bryan v. City of Chicago, 60 Ill. 507; Foss v. City of Chicago, 56 Ill. 354; Dougherty v. Hitchcock, 35 Cal. 512.

Jas. F. Mister for respondent.

(1) The circuit court had jurisdiction. Where a court originally possesses and exercises jurisdiction over a subject, and afterwards similar jurisdiction is given another court (or tribunal), it is in such case concurrent jurisdiction, whether so called in the statute or not. There must be words of limitation to take it away, either by using the word exclusive, or by repealing the former act giving jurisdiction. State ex rel. Renick v. St. Louis Circuit Court, 38 Mo. 402, 408, citing and adopting Commonwealth v. Hudson, 11 Gray (Mass.) 65. (2) In cases where the jurisdiction given is in terms exclusive, then by implication all other courts are prohibited from exercising jurisdiction, but not otherwise. Wernecke v. Kenyon, 66 Mo. 284; Dodson v. Scroggs, 47 Mo. 287; Pearce v. Calhoun, 59 Mo. 273; Cones v. Ward's Adm'r, 47 Mo. 289; State v. Wister, 62 Mo. 592; State v. Harper, 58 Mo. 531. (3) The same doctrine--that the jurisdiction of superior courts can be taken away only by express negative words of a statute, or by irresistible implication--is held by the courts of other states, as in Alabama, Tennessee, Pennsylvania, Massachusetts and Iowa, and by all the courts in this country and England. Gould v. Hayes et al., 19 Ala. 450; Murfree v. Leeper, 1 Overton (Tenn.) 1; Burginhafer v. Martin, 3 Yeates (Pa.) 479; Overseers, etc., v. Smith, 2 Serg. & R. (Pa.) 363; Commonwealth v. McClosk, 2 Rawle (Pa.) 369; Commonwealth v. White, 8 Pick. (Mass.) 453; Commonwealth v. Hudson, 11 Gray (Mass.) 65; Wright v. Marsh, 2 Greene (Iowa) 94. The cases of Stamps v. Bridwell, 57 Mo. 22, and Williams v. Payne, 80 Mo. 409, should be overruled.

NORTON, J.

The petition in this case, which was filed in the circuit court of Jackson county, declares upon six special tax bills amounting in the aggregate to $130.32, exclusive of interest, and on the trial plaintiff obtained judgment, from which the defendant has appealed to this court.

The controlling question in the case is: Did the circuit court have jurisdiction over such a suit? In the case of Williams v. Payne, 80 Mo. 409, which followed the case of Stamps v. Bridwell, 57 Mo. 22, it was held in suits upon special tax bills originating under the charter of the City of Kansas, that the recorder of said city and the justices of the peace had exclusive jurisdiction when the tax bill sued upon did not exceed three hundred dollars. If the opinion in that case and the one upon which it is based are to be adhered to the question propounded must be answered in the negative. On a reconsideration of the question involved, the various provisions of the city charter and the other ruling, of this court, which will be adverted to in this opinion, we have reached the conclusion that the jurisdiction of the circuit court of Jackson county in suits to recover such tax bills is exclusive when the amount sued for exceeds three hundred dollars, and that its jurisdiction is concurrent with that of the recorder and justices of the peace when the amount sued for is three hundred dollars, or less than three hundred dollars, and that the rule announced in the cases above referred to should be no longer adhered to.

The case of the State ex rel. Renick v. St. Louis County Court, 38 Mo. 403, establishes the principle that when a court originally possesses and exercises jurisdiction over a subject its authority to proceed will not be divested or impaired by any subsequent legislative enactment, unless express prohibitory words are used. In the opinion the case of Commonwealth v. Hudson, 11 Gray 65, was approvingly quoted, where it is said that the jurisdiction conferred upon the court of common pleas in certain criminal cases was not ousted by a subsequent statute, which enacted that justices of the peace should have jurisdiction of all offences of the kind designated, the jurisdiction of which had before been exercised by the common pleas court. It was contended in that case that the subsequent enactment vested the exclusive jurisdiction over such offences in justices of the peace. Shaw, C. J., in disposing of the question said: “Taking the language of the statute as it is, what is the effect of this section? Before this statute, the court of common pleas had jurisdiction over this subject matter. Is that jurisdiction taken away? It is no answer to say that another tribunal has jurisdiction, for that is very common. It is in such case concurrent jurisdiction, whether so called in the...