The State ex Inf. Otto v. Hyde

• Decision Date: 27 June 1927
• Docket Number: 27265
• Parties: The State ex inf. Robert W. Otto, Attorney-General, ex rel. W. F. Bales and A. F. Williams, v. F. Hyde et al., Appellants
• Court: Missouri Supreme Court

296 S.W. 775

317 Mo. 714

The State ex inf. Robert W. Otto, Attorney-General, ex rel. W. F. Bales and A. F. Williams, v. F. Hyde et al., Appellants

No. 27265

Supreme Court of Missouri

June 27, 1927

Appeal from Shannon Circuit Court; Hon. E. P. Dorris Judge.

Transferred to Springfield Court of Appeals.

Cunningham & McClellan and L. N. Searcy for appellants.

Green & Green and L. B. Shuck for respondent.

OPINION

Graves P. J.

This is said to be an action in quo warranto to test the validity of the incorporation of the town or village of Eminence in Shannon County, Missouri. It is sought to make a corpse of the corporation, without making it a party to the action. The parties are (1) The State ex inf. Robert W. Otto, Attorney-General, at the relations of Bales and Williams, private relators, as relators, and (2) the respondents are some ten persons charged to be attempting to act as a board of trustees for the said village, together with the clerk of said board, and the marshal of said village. With the view that we have of our jurisdiction, it is not necessary, nor would it be proper, to discuss the absence of the village of Eminence as a party respondent. There is writing on the subject, however.

As presented the petition challenges the right of the respondents to hold their respective offices under the village government. The question at the threshold is that of our jurisdiction. It is not raised by the parties, but it is our duty to raise it. In other words this court should not adjudicate a case not within its jurisdiction. We shall confine our ruling to this simple question.

I. Our appellate jurisdiction is fixed by Section 12 of Article 6 of the Constitution, and Section 5, Article 6, of the amendment of 1884. [Ramsey v. Huck, 267 Mo. l. c. 336.] The case wherein the matter was first fully discussed, after the amendment of 1884, was State ex rel. Blakemore v. Rombauer et al., Judges of St. Louis Court of Appeals, 101 Mo. 499. In this case we have a thorough discussion of the question by Black, J. He ruled that the Supreme Court had jurisdiction, on appeal, of all cases, wherein is involved "the title of any office under this State." He ruled that the office of circuit clerk was an "office under this State," and a case testing the title to such office was appealable to the Supreme Court only. As Judge Walker says in the Ramsey case, supra, the ruling, by later decisions, has been extended to even township officers in Cass County, Missouri. [Macrae v. Coles, and Staley v. Wagner, 183 S.W. 578.] This was a unanimous opinion by Division One.

Judge Ellison of the Kansas City Court of Appeals, in State ex rel. v. Meek, 55 Mo.App. 292, ruled that a case involving the title of the office of county school commissioner should be appealed to the Supreme Court. His opinion is so short that we quote it in full, as follows:

"This proceeding is by writ of quo warranto, whereby it is sought to oust defendant from the office of County School Commissioner for DeKalb County. The lower court entered judgment of ouster, and defendant appeals.

"Among the cases of which the Supreme Court of Missouri has the exclusive appellate jurisdiction under the provision of Article 6, Section 12, of the Constitution as amended in 1884, are those which involve 'the title to any office under this State.' This provision is of broader significance than that other provision in the same section of the Constitution which gives the Supreme Court jurisdiction of cases where 'any state officer is a party.' The former provision is said to be 'not unlike that of Section 6, Article 14, which provides that all officers, both civil and military, "under the authority of this State" shall take the prescribed oath of office.' [State ex rel. Blakemore v. Rombauer, 101 Mo. 502.] It has been held that a deputy constable would fall under the designation of an officer 'under the authority of this State.' [State v. Dierberger, 90 Mo. 369.] It must, therefore, follow that the office of county school commissioner is an office 'under this State,' and as such, in a case involving the title to such office, this court has no appellate jurisdiction. The case will, therefore, be transferred to the Supreme Court. All concur."

With the opinion of Ellison, J., before it, this court heard and determined the case upon the merits, in an opinion by Brace, P.J., but in which there is no discussion of the question of jurisdiction. [State ex rel. v. Meek, 129 Mo. 431.] Jurisdiction had been discussed by Ellison, J., and this court was evidently satisfied with Judge Ellison's views. In fact, the cases are very much more numerous than given in the case of Ramsey v. Huck, supra.

But do these rulings apply to the case at bar? In other words do these men hold offices "under this State?" Of this question next.

II. In reading the case of State ex rel. Blakemore v. Rombauer, supra, we were forcibly struck with a statement made by counsel for relator (101 Mo. l. c. 500) whereat, in urging upon this court that it had appellate jurisdiction of the case out of which the prohibition proceeding grew, and that the Court of Appeals could not issue a writ of prohibition involving a case wherein the appellate jurisdiction was here, learned counsel said: "(3) Again, this case involves the 'title to an office under this State.' [Const., sec. 12, Art. 6.] This clearly means a case where the party holds the office in question under the statutes of this State, in contradistinction of a party who holds an office under a municipality or the ordinances thereof."

We frankly admit that the causes as to municipal officers have sometimes come to, and been determined by this court, but many have been determined by the courts of appeals. Appellate jurisdiction was not discussed in them. Thus in State ex rel. v. Town of Westport and its Aldermen, 116 Mo. 582, the case was tried here as an original proceeding in quo warranto. The case was at the relation of the Prosecuting Attorney of Jackson County. This case would be really no authority either way, it being an original proceeding in this court. But in State ex rel. v. McReynolds, 61 Mo. 203, we have a case in quo warranto wherein the respondents were the trustees of the town of Butler. On appeal this court heard and determined the case. The question of jurisdiction is not mentioned. Further the case was filed in 1873, or two years prior to the Constitution of 1875. So too, in State ex rel. v. Campbell, 120 Mo. 396, we have quo warranto to oust Campbell from the office of Mayor of the City of Rolla. We decided the case, but the question of appellate jurisdiction was neither raised nor discussed. This case arose after the Constitution of 1875, and after the amendment of 1884. There may be others, and no doubt are.

Going to the courts of appeals, we find one case where the question of jurisdiction was raised. [State ex rel. v. Jenkins, 25 Mo.App. 484.] This Jenkins case was quo warranto against the Trustees of the Village of Doniphan, in Ripley County. The appeal was taken to the St. Louis Court of Appeals, and respondents raised a question of jurisdiction, but not the exact question we have here. In the case Judge Lewis says: "A point is made by counsel for the respondent on the jurisdiction of this court. He affirms that the appeal should have been taken to the Supreme Court, under the constitutional provision applying to cases where a 'county or other political subdivision of the State is a party.' The objection is conclusively answered by the fact that this is a proceeding against individuals as personal wrong-doers, and the...