The State ex rel. McCaffery v. Aloe

• Decision Date: 05 December 1899
• Citation: 54 S.W. 494,152 Mo. 466
• Parties: The State ex rel. McCaffery et al. v. Aloe et al
• Court: Missouri Supreme Court

54 S.W. 494

152 Mo. 466

The State ex rel. McCaffery et al. v. Aloe et al

Supreme Court of Missouri

December 5, 1899

Writ awarded.

Edward C. Crow, Attorney-General, Sam B. Jeffries, Assistant Attorney-General, and W. J. Stone for relators.

(1) The authority for the institution of this suit of prohibition is found in the Constitution of the State and its statutory laws. Constitution of Missouri, sec. 3, art. VI; Laws 1895 p. 95. (2) The object of the writ is to prevent an inferior tribunal from assuming jurisdiction of a matter with which it is not legally vested, or where having jurisdiction, it has exceeded its legitimate powers. State ex rel. v Lewis, 76 Mo. 370; High on Extr. Leg. Rem., sec. 789; State ex rel. v. Withrow, 133 Mo. 500; Thomas v Mead, 36 Mo. 233; People v. Whitney, 47 Cal 584; Byler v. Wear, 135 Mo. 230. The question here is not as to whether Judge Withrow exceeded his jurisdiction in the suit for injunction after having obtained authority to act, but that he was without jurisdiction to entertain the same and his assumption of authority thereover is without warrant of law. (3) The proceedings instituted by these defendants were premature. Plaintiffs had not qualified under the law as a Board of Election Commissioners and there was no law in effect at the time by which they could qualify. The act of June 19, 1899, did not become operative until the twenty-first day of August, several days after the institution of the suit. Cozart v. Fleming, 31 S.E 822; Veeder v. Baker, 83 N.Y. 156; Railroad v. Rice, 36 Kan. 593. (4) The suit of injunction shows on its face that it was instituted for the sole purpose of challenging the right of plaintiffs herein to the office of Board of Election Commissioners of the city of St. Louis. Equity has no jurisdiction in such cases. Parties in interest must resort to the legal remedy afforded. Quo warranto is the only means by which this may be done. It is strictly a legal remedy, and its jurisdiction should not be displaced by an equitable proceeding. Fahy v. Johnston, 21 N. Y. App. 757; Forte v. Thompson, 49 Neb. 772; Secomb v. Wurster, 83 F. 856; Rower v. Schuylkill, 21 Pa. Co. Ct. Rep. 311; Cicero v. Cicero, 176 Ill. 9; Ewing v. Jefferson City, 72 Mo. 438; State v. McReynolds, 61 Mo. 233. (5) The constitutionality of an act of the Legislature under which an office is created must be contested by quo warranto against the incumbent. People v. Reordeau, 73 Mich. 508; People v. Maynard, 15 Mich. 463; People v. Perkins, 73 Mich. 303; Attorney-General v. Amos, 60 Mich. 372; People v. Briggs, 50 N.Y. 553; Smith v. McCarthy, 56 Pa. St. 359; Smith v. Myers, 109 Ind. 1;Kemp v. Ventulette, 58 Ga. 419. (6) The matters involved are of a political nature and the circuit court was not warranted in exercising its chancery powers in relation thereto. In re Sawyer, 124 U.S. 200; Green v. Mills, 30 L. R. A. 90; Miss. v. Johnson, 4 Wall. 475; Ga. v. Stanton, 6 Wall. 50. (7) To assume jurisdiction to control the exercise of political powers, or to protect the purely political rights of individuals, would be to invade the domain of the other departments of government or of the courts of common law. Fletcher v. Suttle, 151 Ill. 41; Sheridan v. Calvin, 78 Ill. 237; Dickey v. Reed, 78 Ill. 261; Harris v. Schryoick, 82 Ill. 119; Hardesty v. Taft, 23 Md. 513; Bevard v. Hoffman, 18 Md. 484; People v. Canal Board, 55 N.Y. 393.

George D. Reynolds, Noble & Shields and Morton Jourdan for respondents.

(1) The motion to strike out is to be treated as a demurrer admitting the facts pleaded in the return, and relating back so as to present for consideration here the want of sufficiency in the petition for writ of prohibition. Paxton v. Talmage, 87 Mo. 16; Laws 1895, p. 95; (2) The Supreme Court is limited by the state Constitution to appellate jurisdiction, save in specified cases. The attempted removal from the circuit court of the question of the unconstitutionality of the law of June 19, 1899, is not within the specified cases. The application of plaintiffs and prayer for preliminary order dissolving the preliminary injunction is an attempt to confer original jurisdiction in an injunction case on the Supreme Court, and is not in aid of its appellate jurisdiction. Constitution 1875, art. VI, sec. 2; Mastin v. Sloan, 98 Mo. 252; State ex rel. v. Klein, 116 Mo. 259; Lane v. Charless, 5 Mo. 285. (3) The petition for the writ of prohibition does not present facts sufficient to constitute a cause of action of the kind. Every fact must be shown in the petition to justify the issuance of the writ. It does not show a want of jurisdiction in any particular, and it does not show there was any illegality in the order or in the manner of proceeding on the order. Barnes v. Gottschalk, 3 Mo.App. 222. The want of jurisdiction must be pleaded and denied before the writ will issue. State ex rel. v. Laughlin, 9 Mo.App. 486; s. c. 73 Mo. 443. (4) That the circuit court was that of original jurisdiction is decided in the following cases: Spaulding v. Brady, 128 Mo. 656; State ex rel. v. Hughes, 104 Mo. 471; Copeland v. St. Joseph, 126 Mo. 417; State ex rel. v. Stratton, 136 Mo. 423; Ewing v. Hoblitzelle, 85 Mo. 68; State ex rel. v. Dawson, 99 Mo. 216; State ex rel. v. Johnson, 132 Mo. 105; State ex rel. v. Moehlenkamp, 133 Mo. 134. If the court has jurisdiction to entertain proceedings of the general class to which the case belongs, prohibition will not lie. State ex rel. v. Railroad, 100 Mo. 59. And that the court had such jurisdiction, see: Ex parte Due, 110 Ala. 491; American, Etc., Co. v. Lea, 56 Ark. 539; Fisher v. Superior Court, 98 Cal. 67; Sherwood v. N. E. Knitting Co., 68 Conn. 543; Goldsmith v. Owen, 95 Ky. 420; Ex parte Ellyson, 20 Gratt. (Va.) 10; Ewing v. Hoblitzelle, 85 Mo. 68; Murnane v. St. Louis, 123 Mo. 479; State ex rel. v. Smith, 104 Mo. 419. (5) The legal remedy is inadequate, since it can not act prospectively and prevent the threatened action. The interposition of equity under such circumstances is based upon the doctrine of quia timet, and the necessity of preventing irreparable mischief. (a) Officers de facto may restrain those claiming to be officers de jure, from taking possession of a school house or interfering with management of schools. High on Inj., secs. 1315, 1319 and 1327, citing Bradley v. Commissioners, 2 Humph. 428, and Brady v. Sweetland, 13 Kan. 41. (b) The appointment under an unconstitutional law may be prevented. Rathbone v. Wirth, 150 N.Y. 459. This proceeding was one to restrain appointment of police commissioners. (c) Also to prevent illegal expenditures of public funds; and taxpayers may bring the action. Mechem on Officers, secs. 996 and 994; Throop on Public Officers, sec. 852; State ex rel. v. Hughes, 104 Mo. 459. (d) The idea of an officer implies the existence of an office which he holds. It would be a misapplication of terms to call one an officer who holds no office, and a public office can only exist by force of law. Norton v. Shelby County, 118 U.S. loc. cit. 442; Mechem on Officers, sec. 326. (6) The petition for prohibition did not ask nor authorize the order dissolving the injunction issued by the circuit court. Laws 1895, p. 95. Prohibition is a preventive, and not a corrective remedy. State ex rel. v. Ross, 136 Mo. 259; U. S. v. Hoffman, 4 Wall. 158; State ex rel. v. Rombauer, 105 Mo. 103; State ex rel. v. Macklin, 104 Mo. 619, dissenting opinion of Black and Brace, JJ.; 19 Am. and Eng. Ency. of Law, pp. 263, 281. (7) The circuit court had jurisdiction of the parties and the subject-matter. (a) The parties plaintiff were legally entitled to institute the action in the circuit court of the city of St. Louis. As to individual taxpayers: Newmeyer v. Railroad, 52 Mo. 81; Matthews v. Cameron, 62 Mo. 504; Lynch v. Murphy, 119 Mo. 163; State ex rel. v. Mead, 71 Mo. 266; Dennison v. Kansas City, 95 Mo. 429; Ranney v. Bader, 67 Mo. 476; State ex rel. v. Elkin, 130 Mo. 90; Rathbone v. Wirth, 150 N.Y. 459; Copeland v. St. Joseph, 126 Mo. 417; Mechem on Officers, 996; Throop on Officers, 852. As to prosecuting attorney: State ex rel. v. Field, 119 Mo. 599; State ex rel. v. Stratton, 136 Mo. 426; State ex rel. v. Hughes, 104 Mo. 471; State ex rel. v. Saline County Court, 51 Mo. 350; State v. Callaway, 51 Mo. 395. (b) The State need not be a party. State, etc., v. Hirzel, 137 Mo. 435; State, etc., v. Seay, 23 Mo.App. 623. (8) The circuit court was authorized by express statute and an unbroken line of precedents to proceed to enforce its jurisdiction by a preliminary order of injunction against a threatened legal wrong. R. S. 1889, sec. 5510; 2 High on Inj., sec. 1327; State ex rel. v. Saline County Court, 51 Mo. 350; Huntington v. Cast, 149 Ind. 255; Parsons v. Durand, 150 Ind. 204; Norton v. Shelby County, 118 U.S. 425; Hughlett v. Hughes, 104 Mo. 471. (9) As to the order of injunction, or any other question of jurisdiction or manner of enforcing that jurisdiction, the defendants were bound to bring before the circuit court that question by appropriate proceedings on their part; and this could have been done. Atty-Gen. v. Gill, 39 S.W. 276; State ex rel. v. Laughlin, 9 Mo.App. 486; R. S. 1889, secs. 5505 and 5508. (10) There is no place for interference by prohibition, unless it can be shown that the manner of enforcement of the order made was so oppressively illegal as to require this court to arrest its action. (a) There is no averment to this effect in the petition for prohibition nor any such ground set forth in the motion to strike out the returns. (b) Where there is appeal allowable, there can be no prohibition. State v. Wilder, 49 La. Ann. 1211; State v. Elkin, 130 Mo. 90; Wilson v. Berkstresser, 45 Mo. 283; Bowman's Case, 67 Mo. 146; State ex rel. v. Fox, 85 Mo. 61; State ex rel....