The State ex rel. Walbridge v. Valliant

• Decision Date: 25 June 1894
• Citation: 27 S.W. 379,123 Mo. 524
• Parties: The State ex rel. Walbridge, Mayor, v. Valliant, Judge
• Court: Missouri Supreme Court

27 S.W. 379

123 Mo. 524

The State ex rel. Walbridge, Mayor, v. Valliant, Judge

Supreme Court of Missouri

June 25, 1894

Writ quashed.

W. C Marshall for relator.

(1) The writ of certiorari was properly issued in this case. It is a writ issuing from the supreme court to an inferior court, or officer exercising judicial powers, whose proceedings are summary, commanding the latter to return the records of a cause depending before it to the superior court. 3 Am. and Eng. Encyclopedia of Law, p. 60. It usually issues in cases only where the proceedings of the inferior court are summary and not according to the course of the common law. Tidd's Pr., 379; Farmington River, etc., v. County Commissioners, 112 Mass. 206; Lynch v. Crosby, 134 Mass. 290. (2) A writ of certiorari may be issued either before or after the inferior court has entered judgment. It was issued before judgment in the following cases. State v. Hunt, 46 N. J. L. 59; Rector v. Price, 1 Mo 198; Railroad v. Morton, 27 Mo. 198; Owens v Co. Court, 49 Mo. 294; Harris on Certiorari, secs. 1, 2 3, 4, 10, 16. (3) At common law there were two writs known as writs of certiorari. The first taking up proceedings at any stage of the case prior to final judgment; in other words, for trial in the superior court; the second for taking up the record after final judgment in the lower court, which was a writ in the nature of a writ of review and only issued in cases where no appeal or writ of error lies. Harris on Certiorari, section 3, page 5; sections 2, 3, 4, 10; Laurence v. Dickey, 12 N. J. L. 368; Mackaboy v. Com., 2 Va. Cases, 268; Railroad v. Morton, 27 Mo. 317; State v. Foster, 41 Mo. 61. It issues under supervisory power over inferior courts at any time. Edgar v. Greer, 14 Iowa 212; Lawton v. Com., 2 Caines, 182; Rex v. Glamorganshire, 1 Ld. Raym. 580. (4) Certiorari has been awarded as an original writ and the cause heard and considered by this court in the following cases: Rector v. Price, 1 Mo. 198; Railroad v. Morton, 27 Mo. 317; State v. Foster, 41 Mo. 61; Owens v. Couuty Court, 49 Mo. 372; Railroad v. Board, 64 Mo. 294; and these cases have been cited approvingly in State ex rel. v. Holladay, 67 Mo. 70; State ex rel. v. Kansas City, 89 Mo. 38. (5) Under the provision of the constitution, above quoted (section 3, art. 6), and under section 3243, Revised Statutes, 1889, which gives all courts power to issue all writs which may be necessary in the exercise of their respective jurisdiction, according to the principles and usages of law, this court has, from time to time, issued original writs in extraordinary cases. Ex parte Marmaduke 91 Mo. 228; State ex rel. v. Rombauer, 104 Mo. 619; State ex rel. v. Rombauer, 105 Mo. 103. And in mandamus cases and cases in the nature of mandamus, too frequently to need reference. (6) An appeal leaves the judgment in full force and effect, without any interference or interruption by reason of the appeal. 1 Freeman on Executions [2 Ed.], sec. 32; Railroad v. Atkinson, 17 Mo.App. 484; Hogan v. Rose, 52 U.S. (11 How.) 294-297; Railroad v. Harris, 74 U.S. (7 Wall.) 574; Sage v. Railroad, 93 U.S. (3 Otto) 412; Williams v. Bruffy, 102 U.S. (12 Otto) 248. (7) An appeal with a bond operates as a supersedeas in no case except those specified in section 2249, Revised Statutes of Missouri. State ex rel. v. Lewis, 76 Mo. 370; Railroad v. Evans & Howard, 85 Mo. 307; State ex rel. v. Ransom, 86 Mo. 326; Teasdale v. Jones, 40 Mo.App. 243; Neiser v. Thomas, 46 Mo.App. 47; Elliott on Appellate Procedure, secs. 362-374. (8) A writ of certiorari issued after judgment does not supersede the judgment nor stay the same. Johnson v. The State, 1 Ala. 97; Burshaw v. City Council, 39 N. J. Law, 416; McQuaid v. Emmons, 38 N. J. Law, 397; Mayor v. Shaw, 14 Ga. 162; Taylor v. Gay, 28 Ga. 80; Patchin v. Mayor, 13 Wend. 664; Board v. Wonderly, 55 Ga. 570; Ewing v. Thompson, 43 Pa. St. 372; State v. Niel, 1 Charlt. (Ga.) 42; Shaw v. Macon, 19 Ga. 468; Commissioners v. People, 99 Ill. 587; People v. Hill, 65 Barb. 170. (9) This court can only review such matters as are matters of record in the case before the mayor. It can not, and will not, undertake to look into or decide questions of fact, nor to reverse the action of the mayor, even though the court, upon those facts, would have reached a different conclusion. The evidence which was returned to the circuit court in obedience to the writ issued by that court is no part of the record and was never made part of the record by a bill of exceptions. State ex rel. v. Hockaday, 64 Mo. 294; State v. Foster, 41 Mo. 61; State ex rel. v. Holladay, 67 Mo. 70; State ex rel. v. Kansas City, 89 Mo. 38; State v. Johnson, 18 Lawyer's Reports Ann. 410; Ex parte Childs, 12 Pick. 358; Richardson v. Smitt, 59 N.H. 517; Mollett v. Keenan, 22 Ala. 484; People v. Betts, 55 N.Y. 600; State v. Doherty, 25 La. Ann. 119. (10) It is proper to inquire whether there was any evidence to establish some essential fact, but the finding can not be disturbed if supported by any competent evidence. The supreme court is "not to determine whether the probabilities preponderate one way or the other, but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would or would not have been drawn by the superior tribunal." Jackson v. People, 10 Mich. 111; Ex parte Madison Turnpike Co. 62 Ala. 93; Camden v. Clock, 65 Ala. 236; Ransom v. McElvaine, 49 Mich. 194; Hyde v. Nelson, 11 Mich. 357; People v. Board, 72 N.Y. 415; People v. Board, 69 N.Y. 408; People v. Weigant, 14 Hun (N. Y.), 546; Moreland v. Whitford, 54 Wis. 150; Fore v. Fore, 44 Ala. 478; Miller v. McCullough, 21 Ark. 426; Deputy v. Betts, 4 Har. (Del.) 352; Burton v. Ferguson, 69 Ind. 486; Mendon v. Commissioners, 5 Allen, 13.

Leverett Bell for respondent, Reid.

(1) The motion to quash the writ of certiorari should be sustained. This court will not hear indirectly by resort to certiorari a case which by the state constitution it has not jurisdiction of by writ of error or appeal. Britton v. Steber, 62 Mo. 370. The rule as to certiorari is not modified by State v. Tracy, 94 Mo. 217. (2) If this court possessed jurisdiction of the controversy in the Reid case, the practice act provides for the removal of the same from the circuit to the supreme court by writ of error or appeal, and in such case certiorari does not lie. The writ of certiorari will issue where no adequate mode of review is provided by writ of error, appeal or otherwise from the decisions of inferior courts or tribunals. Harris' Certiorari, sec. 1; Ennis v. Ennis, 110 Ill. 78. (3) If the court, upon a hearing, is satisfied that the writ was improvidently issued, or that justice and equity so require, it will dismiss the same. Curtis v. Utica, 45 How. Pr. 289; People v. Mayor, 2 Hill (N. Y.) 9; Gager v. Board, 47 Mich. 167. (4) It is now the universal practice to refuse the writ of certiorari while the proceedings below are still pending and undetermined. 2 Spelling Extr. Relief, sec. 1894; People v. Peabody, 26 Barb. (N. Y.) 437. It does not go to inferior courts, etc., until the proceedings before them are completed, and a final determination or adjudication had. 2 Spelling Extr. Relief, sec. 1894; Cuyler v. Trustees, 5 Thomp. & C. (N. Y.) 609. (5) It does not appear that the relator in this writ has any personal interest in the subject-matter of the original case. The party applying must show that he has a personal interest in the subject-matter, and not a mere public interest, etc. Harris' Certiorari, sec. 2; Colden v. Botts, 12 Wend. 234.

W. B. Thompson also for respondent, Reid.

This court has recently decided, in the case of the State ex rel. Reid v. Walbridge, 119 Mo. 383, that the mayor has full authority to hear and determine the charges made against Reid, and this court has also held in that case that the courts of law will review any decision made by the mayor in this case. The courts of law have power to review, and the decision supra is in harmony with all the authorities; it affirms the case of the State ex rel. v. St. Louis, 90 Mo. 19, and the doctrine of which case is sustained by the following authorities: People v. Board, 72 N.Y. 415; People v. Board, 72 N.Y. 445; Stockwell v. Board, 22 Mich. 341; Kennard v. Lousiana, 92 U.S. 480. The following cases have held that a writ of certiorari will not issue for a mere defect of form: Elmendorf v. Mayor, 25 Wendell, 693; Monterey v. Berkshire, 7 Cushing (Mass.), 394; Smith v. Commissioners, 42 Me. 395; Criswell v. Richter, 12 Tex. 18. The courts will not issue a certiorari where substantial justice has been already done, or where mischievious consequences will result from its issue, or where the parties can not be placed in statu quo by its issue. Hancock v. Boston, 1 Metcalf (Mass.) 122; Rutlandt v. Worcester, 20 Pickering (Mass.), 71; Gleason v. Sloper, 24 Pickering, 181; People v. Supervisors, 15 Wendell, 198; People v. Rochester, 21 Barber, 656.

Macfarlane, J. Black, C. J., and Brace, Gantt and Burgess, JJ., concur; Barclay and Sherwood, JJ., dissent.

OPINION

In Banc

Certiorari.

Macfarlane J.

A writ of certiorari was issued from this court to respondent, as judge of the circuit court of the city of St. Louis, requiring him to send up the records and proceedings in the case of State ex rel. Reid v. Walbridge then pending before him. In obedience to said writ the records have been filed in this court.

It appears from the records that charges had been preferred before Walbridge, as mayor, against George B. Reid, as commissioner of public buildings of the city of St. Louis which had been heard and determined by him on the thirty-first day of January, 1894. That proceeding...