Tevis v. Foley

• Decision Date: 09 July 1930
• Docket Number: 29766
• Parties: In Re Application of Silas Tevis et al. for Establishment of Public Road v. C. W. Foley, Appellant
• Court: Missouri Supreme Court

30 S.W.2d 68

325 Mo. 1050

In Re Application of Silas Tevis et al. for Establishment of Public Road v. C. W. Foley, Appellant

No. 29766

Supreme Court of Missouri

July 9, 1930

Appeal from Pettis Circuit Court; Hon. C. H. Skinker Special Judge.

Appeal dismissed.

H T. Williams and George P. Longan for appellant.

(1) The appeal should not be dismissed. The county court was without jurisdiction, having proceeded at so-called sessions and terms of court which were not authorized by law nor provided for by any lawful procedure. The petition was not accompanied by the names of five persons owning property abutting on the proposed new road. This was a fatal defect rendering the county court powerless to proceed legally. The circuit court derived only such jurisdiction to proceed as the county court had, which was none. We are therefore confronted by the promotors of the road with the proposition to enforce a void judgment confiscating the land of the individual for public use while it is demanded of the Supreme Court that they stand by and recognize the void judgment as lawful. Jurisdictional questions were raised at the inception of the proceedings and preserved all the way through. (2) The title to the Act of 1917, Laws 1917, page 442, gives no intimation that the right of appeal was to be denied. That a radical change in the law in that regard was to be made. After reciting a long list of the road statutes to be repealed, it says (10th line from bottom, page 442) "and to enact a law . . . relating to the same subject-matter." Repeal of statutes by implication is never favored. Manker v. Faulhaber, 94 Mo. 430; Gordon v. Hopkins, 87 Mo. 519; State ex rel. v. Crawford, 121 Mo. 61; Lang v Calloway, 68 Mo.App. 393. (3) Repeal by inconsistent act is not favored by the law and can only be accomplished where the language and intention are clear and unequivocal. State ex rel. v. McDonald, 38 Mo. 529; State ex rel. Kelley v. Bishop, 41 Mo. 16; Glasgow v Lindell, 50 Mo. 60; State ex rel. v. Heidorn, 74 Mo. 410; State ex rel. v. Spencer, 164 Mo. 48. A special statute controls the general, only when the two statutes relate to the same topic. Camp v. Wabash Railway Co., 94 Mo.App. 272. (4) The statute, Sec. 10629, R. S. 1919, does not say that "there shall be no appeal," or that "no appeal from the judgment of the circuit court shall be taken," but on the contrary implies the taking of an appeal and then attempts to prohibit the "review" of the judgment "on appeal," for it simply declares, "The judgment rendered in said cause shall not be reviewed 'on appeal' or by writ of error," thus presupposing an appeal taken; for why mention review if there is no appeal. There could be no review without appeal or writ of error. So we have the anomaly of right to appeal without authority of the Supreme Court to review. To imply repeal of the general statute guaranteeing the right to appeal the law will not piece out and supply by intendment the language of the so-called repealing statute. It must plainly and expressly deny the right of appeal itself which in this case has not been done. The language of the Legislature must be given its plain and natural meaning. Applying that test the statute fails to expressly take away the right of appeal and the law will not supply by implication in such cases what is not expressed. State ex rel. Maguire v. Draper, 47 Mo. 29. Granting it to be true that the right to appeal is a statutory right, and most rights have become statutory rights; but the right to appeal in all trial courts and in all cases from final judgments has become so settled and universally recognized by the law as to be regarded a favored right which the courts should not allow to be taken away by language that does not clearly and expressly repeal the statute guaranteeing the right.

Barnett & Hayes for respondents.

(1) Respondents' first motion to dismiss this appeal should be sustained. The judgment of the circuit court in this proceeding "shall not be reviewed on appeal or writ of error." Sec. 10629, R. S. 1919. This statute prevails over Sec. 1469, R. S. 1919 (the statute providing for appeals in all cases where appeals are not prohibited by the constitution), because Section 1469 is a general statute and Section 10629 is a special statute. A special statute always prevails over a general statute. State ex rel. Am. Ins. Co. v. Gehner, 280 S.W. 416; State ex rel. Hyde v. Buder, 315 Mo. 791; State ex rel. Monier v. Crawford, 303 Mo. 652; Hurlburt v. Bush, 224 S.W. 326; Folk v. St. Louis, 250 Mo. 116. (2) Sec. 10629, R. S. 1919, was passed in 1917 (Laws 1917, p. 442, l. c. 448). Sec. 2038, R. S. 1909, is a much older statute than Section 10629. The later statute operates as a repeal of the former statute in so far as the two are inconsistent. State ex rel. Mo. Pac. Ry. Co. v. Pub. Serv. Com., 275 Mo. 60, 204 S.W. 395; Dorris Motor Car Co. v. Colburn, 307 Mo. 137; State ex rel. Matacia v. Buckner, 300 Mo. 359. (3) The right of appeal is purely statutory and does not exist except to the extent that it is expressly given by statute: Dorris Motor Car Co. v. Colburn, 307 Mo. 137; Segall v. Garlichs, 313 Mo. 406; Manthey v. Kellerman Cont. Co., 311 Mo. 147; Pfotenhauer v. Ridgway, 307 Mo. 529; Arcadia Timber Co. v. Evans, 304 Mo. 674; Bonfils v. Martin's Food Service Co., 299 Mo. 500. (4) The constitutionality of Section 10629 is not before this court and cannot be questioned. One who desires to attack the constitutionality of a statute must do so at the first opportunity. He must plead the unconstitutionality if the first opportunity for attack comes at a stage of the proceedings where the jurisdiction of the court to act is to be invoked by the filing of a written instrument. State v. Gamma, 215 Mo. 100; Hurtzler v. Met. St. Ry. Co., 218 Mo. 562; Ash v. City of Independence, 169 Mo. 77; Ash v. City of Independence, 145 Mo. 125; Sheets v. Ins. Co., 226 Mo. 618. (5) And the specific provision of the Constitution which is infringed must be pointed out. Ash v. City of Independence, 169 Mo. 77; Lohmeyer v. Cordage Co., 214 Mo. 688; Excelsior Springs v. Ettenson, 188 Mo. 129; Davis v. Thompson, 209 Mo. 196.

OPINION

Frank, J.

This is an appeal from a judgment of the Circuit Court of Pettis County establishing a public road under the provisions of Article I, Chapter 98, Revised Statutes 1919, as amended.

The proceedings were instituted in the County Court of Pettis County by respondents as petitioners. Appellant and others filed a remonstrance in the county court, remonstrating against the establishment of the proposed road. The cause was heard in the county court and that court rendered a judgment establishing said proposed road. On appeal to the circuit court the cause was there tried anew, resulting in a judgment of that court establishing the proposed road, from which judgment an appeal was granted to this court.

Respondents have filed a motion to dismiss the appeal and the motion was taken with the case. The ground of the motion is that no appeal lies from a judgment of the circuit court establishing a public road. The statute on which respondents rely is Section 10629, Revised Statutes 1919. This section, after providing for an appeal from the judgment of the county court to the circuit court, makes the following further provision:

"The circuit court shall proceed to hear and determine said cause anew, as other causes are determined, except that no commissioners shall be appointed by it, and six qualified jurors may constitute a jury for the trial of the question of damages in said cause, but the court shall determine and declare by its judgment whether said road shall be established, and if established, whether at the expense of the county, or the petitioners, or both, and the judgment in said cause shall not be reviewed on appeal or by writ of error." (Italics ours.)

This statute plainly states that the judgment of the circuit court in this class of cases shall not be reviewed on appeal or by writ of error. This language means that no appeal lies from a judgment of the circuit court...