The State ex rel. Kansas & Texas Coal Railway v. Shelton
| Citation | 55 S.W. 1008,154 Mo. 670 |
| Parties | THE STATE ex rel. KANSAS AND TEXAS COAL RAILWAY v. SHELTON, Judge |
| Decision Date | 05 March 1900 |
| Court | United States State Supreme Court of Missouri |
Writ quashed.
Adiel Sherwood for relator.
(1) At common law the writ of certiorari was used by the superior court for the purpose of reviewing the acts and proceedings of inferior tribunals, courts and officers, whether they proceeded according to the course of the common law or not and this process of review was used. First. Before judgment for the purpose of bringing the record into the superior court for trial. Goodright v. Dring, 2 Dowl. & Ryl. 407; Cross v. Smith, 1 Salk. 148; Taylor v Shapland, 3 M. & S. 328; Rex v. Cowle, 2 Burr 860 (); State ex rel. v. Dobson, 135 Mo 1. Second. To bring the record into the superior court after final judgment, for the purpose of reviewing the regularity of the proceedings of inferior tribunals, courts, or officers, to test the question of jurisdiction and ascertain whether they had kept within due bounds or had usurped a power not given them by law -- in short, for the correction of errors and to restrict them within their legal limits. Groenvelt v. Burwell, 1 Ld. Raym. 469; Rex v Inhab. of Glamorganshire, 1 Ld. Raym. 580; Cooke v Reinhart, 1 Rawle (Pa.) 173. Third. When the record was removed before trial had in the inferior court or tribunal, there was nothing for the superior court to do but to proceed with the trial of the particular case, and as much so as if nothing had ever been done prior to that time. In such a case, therefore, no question could ever arise about the consideration or non-consideration of the evidence before the lower court or tribunal, for the plain reason that no trial had ever been had in the lower court or tribunal, and manifestly there was no evidence to review and none could come up with the record. Fourth. Where the writ issued after final judgment below it operated as a writ of error and the record was examined by the superior court in the same manner as if it were being reviewed on writ of error. Railroad v. Young, 96 Mo. 39; Farmington Co. v. Com'rs, 112 Mass. 212; Groenvelt v. Barwell, 1 Salk. 144; State ex rel. v. Powers, 68 Mo. 320, l. c. 323; Dryden v. Swinburne, 20 W.Va. l. c. 106; Harris v. Barber, 129 U.S. 369. However, when a record was brought into a superior court from an inferior court, board or officer after judgment, the question at once arose as to how far the superior court would consider the acts and proceedings of the inferior court, board or tribunal; in short, whether this review would extend to mere errors of law and would extend to a consideration of the evidence in connection with the record certified. It was held that all errors which appeared upon the face of the record would be reviewed and corrected and that in addition, the lower court, board or officer, would be required to certify to the superior court, so much of the evidence as was necessary to determine whether the lower court, officer or tribunal had proceeded in accordance with its jurisdiction or had acted illegally or whether the proceedings were regular. (2) We often find the announcement made in the books that where no appeal or writ of error lies in proceedings not according to the course of the common law, certiorari will lie. First. Where appeal or writ of error does not lie and the lower court, tribunal or officer is not proceeding according to the course of the common law, certiorari will lie -- otherwise there is no remedy. This is fundamental. Second. The proposition stated in the first subdivision does not mean, however, that certiorari does not lie merely because there is a remedy by appeal or by writ of error. The reason is very plain. (a) There was no such thing at common law as an appeal. An appeal is the creature of the civil law, which was introduced into the English system by the lord chancellors and found in this country to day in its purity only in the Federal courts on the equity side. U.S. v. Goodwin, 7 Cranch 111; U. S. v. Wanson, 1 Gall. (U.S.) 11; Styles v. Styler, 64 Conn. 472; Fause v. Vaud, 30 W.Va. 331; Barlow v. Daniels, 25 W.Va. 521; Story's Const. (5 Ed.), sec. 1762. (b) An appeal was never allowed unless some statute expressly conferred the right. 2 Chitty Gen'l Prac., 215; Tierney v. Dodge, 9 Minn. 166; King v. Jukes, 8 T. R. 542; King v. Morely, 2 Burr. 1042; Roser v. Marlow R. N. Charlt. (Ga.), 543. (c) But certiorari was always allowed where the words of the statute did not expressly take it away. There is not a single authority in any law book, ancient or modern, which ever denied or attempted to deny this plain proposition. People v. Wemple, 61 Hun. (N. Y.) 53; Overseers v. Smith, 2 S. & R. (Pa.) 363; Tierney v. Dodge, 9 Minn. 166; 2 Chitty Gen'l Prac., 219; King v. Jukes, 8 T. R. 542; King v. Morely, 2 Burr. 1042; Railroad v. Suydan, 2 Har. (N. J.) 25. And king's bench having a general superintending control will remove proceedings by certiorari unless some statute or charter forbid. 2 Hawkins P. C., sec. 22, p. 405; Rex v. Morely, 2 Burr. 1040; Ex parte Heath, 3 Hill (N. Y.) 52; This court has all the powers of the court of chancery and king's bench. State ex rel. v. Rombauer, 105 Mo. 103; State ex rel. v. Rombauer, 101 Mo. 499. And even where forbidden by statute to correct errors of jurisdiction or excesses and to restrain inferior tribunals within proper limits. People v. Judges of Suffolk, 24 Wend. 249; King v. Judges, 8 Dowl. & Ryl. 733. The words "general superintending control" and "other remedial writs" in our Constitution have the same meaning as at common law. Carnall v. Crawford Co., 11 Ark. 615. Even where certiorari and appeal are both forbidden, certiorari was issued to correct errors of jurisdiction and keep inferior tribunals within due bounds. King v. Justices of Somersetshire, 6 Dowl. & Ryl. 471. The rule is exactly the same in Missouri to day, because the remedy by certiorari is provided for in our Constitution and our courts take the remedy as at common law because there has been no legislation upon the subject. Railroad v. Board, 64 Mo. 294. In this State the right to the remedy is a constitutional right like appeal. Railroad v. Brick Co., 85 Mo. 307. Or a writ of error. State v. Jim, 1 Mo. 147; Blount v. Sheppard, 1 Mo. 219; Calloway v. State, 1 Mo. 780; Const. Mo., secs. 2, 3, art. VI; Amend. 1884, sec. 5; State ex rel. v. Springer, 134 Mo. 222; Ex parte Anthony, 5 Ark. 358; Specht v. Detroit, 20 Mich. 168; Thompson v. School District, 25 Mich. 483; People v. Judge, 32 Mich. 95; Merric v. Arbela Township, 41 Mich. 631; Swift v. Judge, 64 Mich. 479; In re Booth, 3 Wis. 1; State ex rel. v. Judge, 49 La. Ann. 1454; Vaughan v. Ashland, 37 N.W. 809; Tierney v. Dodge, 9 Minn. 166. In like manner it has been held time and again that a remedy in equity is not taken away except by express words. (3) First. It is true that the writ of certiorari was not a writ of right, except when applied for by the King or under our practice by the State, acting through its Attorney-General. State ex rel. v. Dobson, 135 Mo. 1. While the writ of certiorari was not a writ of right, it was not refused except in the exercise of the sound judicial discretion of the court. Supervisors v. Magoon, 109 Ill. 142; Harris v. Barber, 129 U.S. 366. This has never been held to mean that the superior court would refuse the writ, acting upon mere whim or caprice, or that the superior court would refuse the writ simply because of an accumulation of business or that the granting of the writ would interfere with the conduct of the regular business of the court or because there was a remedy by appeal or writ of error. The writ is issued to do justice between the parties. Drowne v. Simpson, 2 Mass. 445; Lees v. Childs, 17 Mass. 352; Bath Bridge Co. v. Magoun, 8 Greenl. (Me.) 293; Comstock v. Parker, 5 Wend. 98; Starr v. Trustees, 6 Wend. 566; Wood v. Randall, 5 Hill. 269; Krumeick v. Krumeick, 2 Green (N. J.) 39; People v. Judges, 24 Wend. 249; Mayor of London v. Coxe, 2 L. R. (H. L.) 278; Stokes v. Knarr, 11 Wis. 393; Knapp v. Heller, 32 Wis. 468; Dunlap v. Ry. Co., 46 Mich. 190; Territory v. Valdez, 1 N. M. 533. On the contrary, the discretion of the court is a sound judicial discretion to determine whether under the circumstances of the particular case, the remedy in the particular case which is open to the petitioner for the writ and on account of which certiorari is to be denied, is equally convenient, speedy, and beneficial, and this is what is meant when the courts say that where there is an adequate remedy by appeal or writ of error certiorari as a general rule will not lie. None of the authorities hold that merely because there may be a remedy by appeal or writ of error, that therefore certiorari will not lie. LaGrange v. State Treas., 24 Mich. 477; Inhab. of Cushing v. Gay, 23 Me. 9; Hopkins v. Fogler, 60 Me. 266; Spofford v. Railroad, 66 Me. 26; Edgar v. Greer, 14 Iowa 212; Railroad v. Railroad, 47 Cal. 528; People v. Hill, 53 N.Y. 547; Knapp v. Heller, 32 Wis. 468. An adequate remedy is a remedy which is equally beneficial, speedy, and sufficient; not merely a remedy which at some time in the future will bring about a reversal of the judgment of the lower court complained of in the certiorari proceeding, but a remedy which will promptly relieve the petitioner from the injurious effects of that judgment and the acts of the inferior court or tribunal. People v. Com'rs, 66 How. Pr. (N. Y.) 293; Kirby v. Superior Court, 68 Cal. 605; Havemeyer v. Superior Court, 84 Cal. 398; People v. Head, 25 Ill. 329; People v. Hilliard, 29 Ill. 419; King v. Railroad, 2 B. & Ald. 646; People v. Mayor, 10 Wend. 395; People v. State Ins. Co., 19 Mich. 396; Rex v. Windham, Cowp. 377; Rex v....
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