The State ex rel. Gardner v. Hall
| Decision Date | 18 May 1920 |
| Parties | THE STATE ex rel. FREDERICK D. GARDNER et al., Constituting State Board of Equalization, v. ROBERT W. HALL, Judge |
| Court | Missouri Supreme Court |
Preliminary Writ Made Permanent.
Frank W. McAllister, Attorney-General, and John T. Gose, Assistant Attorney-General, for relators.
(1) A circuit court has no superintending control over an inferior tribunal which is not within the territorial limits of its circuit. Sec. 23, Art. VI, Mo. Constitution. "The expression of one thing is the exclusion of others." Hendricks v. Sweaney, 270 Mo. 692; Kansas City v. Assn., 145 Mo. 53; Maguire v. Association, 62 Mo. 346; Sutherland on Statutory Construction, secs. 325 326, 327. (2) Even though the superintending control of the circuit court over inferior tribunals were not territorially limited, by the constition, still it would not necessarily follow that because the jurisdiction of the circuit court was general in a given class of cases, it had jurisdiction in a specific case. State ex rel. v. Cave, 272 Mo. 668; State ex rel. v. Shields, 272 Mo. 242; State ex rel. v. Grimm, 243 Mo. 667; State ex rel. v McQuillin, 246 Mo. 532; State ex rel. v Bright, 224 Mo. 514. To hold that the Circuit Court of the City of St. Louis had superintending control over the State Board of Equalization would necessarily mean that every circuit court in the state had superintending control over the State Board of Equalization. Such conclusion is so clearly in contravention of public policy that it can not be within the contemplation of the law of this State. (3) Transmission of the alternative writ to the sheriff of Cole County, and its alleged service in said county, did not give the Circuit Court of the City of St. Louis jurisdiction over the persons of the members of the State Board of Equalization. Sec. 1751, R. S. 1909. Where a court has no jurisdiction at all, or where it is exercising powers in excess of its rightful jurisdiction, the writ of prohibition will go. State ex rel. v. McQuillin, 256 Mo. 703.
Marion C. Early, for respondent.
(1) Sec. 23, Art. 6, State Constitution, does not apply to this case. (a) It only applies to local tribunals, inferior to the circuit court, which the Board of Equalization is not. (b) As a general provision concerning jurisdiction it has no application to local actions, which the certiorari here involved is. Casey v. Adams, 102 U.S. 66. (2) The certiorari here involved is a local action, and its location is the City of St. Louis. State ex rel. v. Grimm, 243 Mo. 674; Black's Law Dictionary, Tit., Actions; Burrill's Law Dictionary, Tit., Actions; Mason v. Warner, 31 Mo. 508; Crook v. Pitcher, 61 Md. 510; Ackerson v. Erie Railroad, 31 N. J. L. 312; 40 Cyc. 27, Title, Venue; People v. Cicott, 15 Mich. 326; Jordan v. Owens, 67 Ga. 616; McLeod v. Connecticut Railroad, 58 Vt. 727; Worster v. Winnipiseogee, 25 N.H. 525; Condon v. Leipziger, 17 Utah 498; Miller v. Hickey, 127 F. 573. (3) The certiorari being a local action, the Circuit Court of the City of St. Louis had authority to issue summons to Cole County. Magrew v. Foster, 54 Mo. 261; Stone v. Travelers' Ins. Co., 78 Mo. 658; Castleman v. Castleman, 184 Mo. 438. (4) No public policy countervails the jurisdiction of the Circuit Court of the City of St. Louis in the certiorari case.
OPINION
In Banc
Prohibition.
This is an original action brought in this court to prohibit one of the judges of the Circuit Court of the City of St. Louis from further proceeding in a case pending in the circuit court of that city, entitled Frank Meyer et al. v. The Governor and Other Executive Officers Constituting the State Board of Equalization, the purpose being to quash the record of said board so far as the equalization of the values of real property in that city for the purpose of taxation. In furtherance of that proceeding the circuit court issued a writ of certiorari, which was transmitted to the Sheriff of Cole County for service upon the members of the board and was there served upon them. Counsel for the board, appearing for that purpose only, in the circuit court moved to quash the writ on the ground of a lack of jurisdiction, both as to the subject-matter and the persons. The motion was overruled, and upon the circuit court continuing to exercise jurisdiction this proceeding by prohibition was instituted.
The question presented for solution is one of jurisdiction.
The constitutional provision (Sec. 23, Art. VI) limiting the superintending control of circuit courts within their respective circuits over certain other courts, naming them, and "all inferior tribunals," is foreign to the matter at issue. The Board of Equalization, although its acts are judicial (State ex rel. Van Raalte v. Board of Equalization, 256 Mo. 455, 461, 165 S.W. 1047), is not a tribunal within the meaning of the Constitution. If it could be so classified it exists only as a board and its location is at the state capital, beyond the territorial jurisdiction, as defied by the Constitution, of the St. Louis Circuit Court. If, therefore, that court possesses the power to require the board to respond to the writ here sought to be invoked it must be found elsewhere than in the constitutional provision referred to. That this power may be so found is dependent upon the general jurisdiction of circuit courts and the procedure provided by law for the exercise of that jurisdiction. This follows as a necessary deduction from the nature of the State Constitution as a limitation upon rather than a grant of power; and precludes the conclusion that it was intended to or does limit the general common-law jurisdiction of circuit courts. The function of the writ of certiorari in Missouri is the same as at common law and proceedings therefor should be commenced in the circuit court unless for special reasons complete justice cannot be done, in which case proceedings may be commenced in a Court of Appeals or the Supreme Court. [Owens v. Andrew County Court, 49 Mo. 372; State ex rel. v. Dowling, 50 Mo. 134; State ex rel. v. Kansas City, 89 Mo. 34, 37; State ex rel. v. Walbridge, 116 Mo. 656, 22 S.W. 893; In re Breck, 252 Mo. 302, 158 S.W. 843, 851.]
Concrete illustration of the exercises of the power of circuit courts in the issuance of the writ against the State Board of Equalization are found in the following cases: State ex rel. Armour P. Co. v. Stephens, 146 Mo. 662, 48 S.W. 929; Han. & St. Joe R. R. Co. v. State Board of Equalization, 64 Mo. 294.
The general jurisdiction of circuit courts to issue the writ, or what in an ordinary action would be termed jurisdiction over the subject-matter, having been established, it remains to be determined whether it can be exercised under the facts at bar. This is dependent upon the nature of the proceeding or, more definitely stated, its classification, so far as it can be classified as an action; the character of the respondent, or board; and its location or residence.
Ordinary actions are as to venue classified as transitory and local. The distinctions between them have been well defined in Mason v. Warner, 31 Mo. 508, and need not be adverted to here further than to say that the location of the board or the place of its legal existence and the purpose sought to be accomplished by this proceeding are such as to foreclose the conclusion that this is a transitory action. This for the reason that the venue of the proceeding must have a legal and well defined locus in quo. Generally speaking, it would not be subjected to classification as an ordinary action, but being an application for a prerogative writ, would simply be pus Juris, p. 87, sec. 1; Works, Juris., p. 703; State designated as an extraordinary proceeding. [11 Corex rel v. Wiethaupt, 254 Mo. 319, 162 S.W. 163; State ex rel. v. Goodrich, 257 Mo. 40, 165 S.W. 707.] Our Code (Sec. 1751, R. S. 1909), however, in prescribing the places where actions must be brought, while not obliterating, has rendered of minor importance, so far as the venue is concerned, the difference between transitory and local actions. Whether they belong to one class or the other, they must, to give the court jurisdiction of the person, be instituted under the conditions prescribed in the statute. It is true that a literal interpretation would limit its requirements "to suits instituted by summons," that being the language of the section. While we have no statute regulating the course of proceedings in certiorari, and we are authorized to adopt the principles and usages in regard to the writ recognized at common law, such adoption must in its application be moulded and modified to conform to the requirements of our general code of procedure whenever this can be done. [State ex rel. Barker v. Wurdeman, 254 Mo. 561, 569, 163 S.W. 849; State ex rel. Bank v. Springer, 134 Mo. 212, 222, 35 S.W. 589.] Therefore, although this proceeding is not a suit in the ordinary acceptation of the term, it comprehends all the essential elements necessary to constitute one, viz., a moving and an adverse party and the necessity of a decision determining the issue. We have held another extraordinary statutory proceeding for the discovery of assets of an estate to be a suit, because it possessed the essentials stated. [Clinton v. Clinton, 223 Mo. 371, 380, 123 S.W. 1; Ex parte Gfeller, 178 Mo. 248, 77 S.W. 552; Eckerle v. Wood, 95 Mo.App. 378, 69 S.W. 45.] In Georgia it is expressly held that a proceeding in certiorari is a suit. [Hendrix v. Kellogg, 32 Ga. 435, 437.] An application for a writ of prohibition is held by the United States Supreme Court to be a suit. [Weston v. Charleston, 2 Peters 463.] A like ruling was made by the Supreme Court of Illinois in regard...
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