The State ex rel. Kochtitzky v. Riley

• Decision Date: 30 March 1907
• Citation: 101 S.W. 567,203 Mo. 175
• Parties: THE STATE ex rel. KOCHTITZKY et al. v. RILEY et al
• Court: Missouri Supreme Court

101 S.W. 567

203 Mo. 175

THE STATE ex rel. KOCHTITZKY et al. v. RILEY et al

Supreme Court of Missouri

March 30, 1907

Writ denied.

Oliver & Oliver for relators.

(1) The writ of prohibition is of common law origin and is of great antiquity. It was framed to confine courts of special limited, or inferior jurisdiction within the proper limits of their authority, and to prevent confusion in the administration of justice. 16 Enc. Pl. and Pr., 1093; 2 Bailey on Jurisdiction, sec. 449; Smith v. Whitney, 116 U.S. 167. (2) It issues to an inferior court, when such court exceeds its jurisdiction in a case of which it may take cognizance, no less than when it has no jurisdiction whatever. And it is available to keep a court within the limits of its lawful authority in a particular proceeding, as it is to prevent the exercise of jurisdiction over a cause not given by law to it for consideration. State v Slover, 126 Mo. 652; State v. Withrow, 133 Mo 500; 2 Bailey on Jurisdiction, sec. 447; Railroad v Wear, 135 Mo. 230. (3) If a court attempts to exercise jurisdiction in a case, or in a manner not authorized by law, it is the duty of the Supreme Court, under its supervisory jurisdiction over all inferior courts, to prohibit it. Const., art. 6, sec. 3; Railroad v. Wear, supra; State ex rel. v. Spencer, 166 Mo. 271. (4) The writ is not confined to cases where the lower court has no jurisdiction at all, but extends to cases where the court having jurisdiction of the suit exceeds its legitimate or lawful powers. State v. Slover, 126 Mo. 652; State v. Withrow, 133 Mo. 500; State v. Ellis, 130 Mo. 90. (5) The right to a change of venue is purely statutory and has no existence outside of the special grant of power to award it; and to entitle a party to a change of venue, he must comply with all the substantial requirements of the enabling act. State v. Headricks, 149 Mo. 403; State v. Wofford, 119 Mo. 409; State v. Sanders, 106 Mo. 194; State v. Woodson, 86 Mo.App. 253; Cole v. Cole, 89 Mo.App. 233; Smith v. Railroad, 31 Mo.App. 140. (6) An application which fails to show when the applicant received his information as to the bias or prejudice of the trial judge is insufficient and will be refused. Smith v. Railroad, 31 Mo.App. 140; Ranney v. Railroad, 157 Mo. 477; Railroad v. Holliday, 137 Mo. 440. (7) The statute under which these drainage proceedings are had makes no provision for a change of venue. And the right to a change of venue, as above stated, is purely statutory and does not exist except in those instances where the statute gives it. (a) It has been held that a statute authorizing the removal of a suit, action, issue, petition, presentment or indictment by the judge or judges of any court of the State does not authorize the removal of an equity suit by a change of venue. Cook v. Cook, 41 Md. 362. (b) So a change of venue was denied on a quo warranto where this court ordered it to be tried in a specified county. State v. Townsley, 56 Mo. 107. (c) Changes of venue will not lie from one circuit court to another, from the hearing of a petition for the opening of a public road, unless the statute grants the right. Ex parte Williams, 4 Yerg. (Tenn.) 580. (d) The statute authorizing a change of venue from a justice of the peace in a case of assault and battery does not warrant a change of venue where the proceedings are before the court of criminal correction. State v. Zeppenfeld, 12 Mo.App. 573. (e) In a "suit" pending before the probate court neither party to the "suit" is entitled to a change of venue, and the action of a probate judge in granting a change of venue was condemned by the St. Louis Court of Appeals and held to be without authority of law. Morris v. Lane, 44 Mo.App. 1. (f) There is no general and inherent power in courts to remove a cause pending therein to another court. But that power can only be given by statute, and the statute must be complied with. And it was held in Michigan that while the policy of the State did not favor the action of judges trying cases where they had been of counsel, the jurisdiction of the court was not taken away because of the incapacity of the judge to sit in a given case; and it was held that every case must remain in the court where it originated until removed by lawful authority. Shannon v. Smith, 31 Mich. 451. (8) This is not a "suit" -- which is a controversy between a "plaintiff" and a "defendant;" this is an independent and special statutory proceeding authorizing contiguous landowners to incorporate a quasi public corporation for a particular purpose. The only resemblance it bears to a suit is the fact that non-petitioning landowners are notified by "summons" or an "order of publication," as in civil cases. Laws 1905, p. 191; L. & S. Co. v. Miller, 170 Mo. 240. (9) An examination of the statute under which these drainage proceedings were instituted will convince any reasonable mind that the statute is complete in itself and that the mode of procedure is exclusive. The construction contended for by respondent is unreasonable, for if the proceedings for the incorporation of a drainage district is a "civil suit" within the meaning of the code, then the proceedings would have to be brought in every county where the lands are situated, as provided by the statutes. Section 8253, Laws 1905, page 120, provides that any owner of real estate who has not signed the "articles of association" may object to the organization and incorporation of the drainage district by filing "objections" on or before the first day of the term of the court. The statute limits his objections, however, as follows: 1. "Why such drainage district should not be organized and incorporated." 2. "Why his land or any part thereof will not be benefited by the proposed drainage." The objections thus made, and they are all that he is permitted to make, shall be heard by the court in a "summary manner, without unnecessary delay," and in case the objections are overruled, the circuit court shall by its order, duly entered and recorded, "declare and decree said drainage district to be a public corporation of this State." The real purpose of the statute up to this state of the proceedings is to secure a decree declaring the proposed drainage district a corporation. Land & Stock Co. v. Miller, 170 Mo. 240.

John A. Hope for respondents.

(1) If the drainage proceeding is anything that can be entertained at all by the circuit court, it is a civil suit within the meaning of the change of venue statute. 2 Bouvier's Dict., p. 1065; Hockemeyer v. Thompson, 150 Ind. 176; Bass v. Elliott, 105 Ind. 517; Weston v. Charleston, 2 Peters (U. S.) 467; Pac. Ry. cases, 115 U.S. 5. "Civil suit" in the change of venue statute must mean the same as "civil case" in the section of the Constitution defining and limiting the jurisdiction of circuit courts to "criminal cases" and "civil cases;" therefore, if this drainage matter is not a "civil suit" relators have no case in the circuit court; on the other hand, if it is a civil suit, respondents are entitled to a change of venue. Sec. 22, art. 6, Const.; sec. 818, R. S. 1899. A change of venue is authorized, notwithstanding it is a special statutory proceeding, and although there is no provision for change of venue in the special statute regulating the proceeding. Railroad v. Fowler, 113 Mo. 466; Manson v. Coleman, 86 Mo.App. 23; State ex rel. v. Smith, 176 Mo. 97; Nash v. Craig, 134 Mo. 354. (2) "The rulings of the circuit court on the application for a change of venue are reviewable by appeal, writ of error or certiorari, either of which remedies is adequate for the alleged errors complained of herein, and having other adequate remedies, relators are not entitled to have the proceedings of the circuit court reviewed, set aside or interfered with by the writ of prohibition." Eudaley v. Railroad, 186 Mo. 399; State ex rel. v. Evans, 184 Mo. 632; High, Extra. Rem. (3 Ed.), sec. 765. The question whether or not the change of venue statute (sec. 818) applies to special statutory proceedings has been pronounced by this court "debatable both on principle and authority." State ex rel. v. Evans, 184 Mo. 642. It will not be denied, we assume, that the action of Judge Riley on the motion for change of venue, whether it was erroneous or not, can be reviewed on appeal, or, if no appeal lies, by certiorari; nor can it be disputed that the general rule is that prohibition will not issue when these other remedies exist. The question then is, does the fact that the material prosperity of certain private interests and their plan to enrich themselves at the expense of others will be promoted, justify a departure from the general rule and the issuance of this writ when there are other remedies?

OPINION

In Banc

Prohibition.

WOODSON J.

In September, 1905, the relators and other landowners in the counties of Bollinger, Cape Girardeau, Dunklin, New Madrid, Pemiscot, Scott and Stoddard filed in the office of the clerk of the circuit court of New Madrid county "Articles of Association" for the formation and incorporation of a drainage district for the reclamation of swamp and overflowed lands, located in those counties. The articles of association were drawn in conformity with article 3, chapter 122, of the Revised Statutes of Missouri, 1899, and the amendments thereto, approved April 8, 1905, relating to swamp and overflowed lands; and prayed for an order of said court incorporating the landed territory, described in said articles, into a drainage district, to be known as the Little River Drainage District.

The articles of association and the petition so filed conform to all the requirements of the said statute and act before mentioned, and all the non-petitioning landowners of the district either entered their...