The State ex rel. Excelsior Powder Manufacturing Co. v. Ellison
| Decision Date | 14 July 1914 |
| Parties | THE STATE ex rel. EXCELSIOR POWDER MANUFACTURING COMPANY v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals |
| Court | Missouri Supreme Court |
Writ denied.
Kinealy & Kinealy and E. Wright Taylor for relator.
(1) This case, in view of the pleadings, is to be determined on the facts shown by relator's petition and the exhibits filed therewith. State ex rel. v. Guthrie, 245 Mo 150; State ex rel. v. Caulfield, 245 Mo. 278; State ex rel. v. Lamb, 237 Mo. 437; State ex rel. v. Sheppard, 192 Mo. 497. (2) The Court of Appeals has no jurisdiction of a case involving a construction of the Constitution and upon the constitutional question being brought to its attention it is the duty of the court to at once transfer the cause to this court. Constitution, art. 6 sec. 12; Constitution, Amend. 1884, sec. 5; R. S. 1909, sec 3938. (3) Even an application to the Court of Appeals to transfer the case to this court is not a jurisdictional requirement in prohibition proceedings. State ex rel. v Williams, 221 Mo. 247; State ex rel. v. Eby, 170 Mo. 518; State ex rel. v. Aloe, 152 Mo. 484. (4) The true meaning of section 14 of article 12 declaring railroads to be "public highways" was a live one in the trial court and of the utmost importance to relator, the defendant there, because: (a) That constitutional provision in reality merely means that railroads are subject to legislative control and have certain quasi-governmental rights, such as eminent domain. Farber v. Railroad, 116 Mo. 81. (b) The railroad is private property and no one has a right upon it without the consent of the railroad company. Nevada v. Eddy, 123 Mo. 546; Isabel v. Railroad, 60 Mo. 475. (c) Therefore, even if the relator's plant were a dangerous thing yet the fact that it is located near a railroad could not constitute it a public nuisance, although it might be a private one. 22 Cyc. 1152; Martin v. St. Joseph, 136 Mo.App. 320. (d) For the maintenance of a private nuisance no one has a right of action except the owner of the premises, and not even he if he consents to it. Ellis v. Railroad, 63 Mo. 131; Whalen v. Baker, 44 Mo.App. 290; Kavanaugh v. Barker, 131 N.Y. 211. (e) Mrs. Liggett's complaint, if any she has, should therefore be founded on negligence. The defendant would then have open to it the defenses of accident, contributory negligence and the exercise of ordinary care, which could not be set up in a case based upon the maintenance of a nuisance. Casey v. Bridge Co., 114 Mo.App. 61; Paddock v. Somes, 102 Mo. 239. (5) The Court of Appeals therefore has no jurisdiction of that appeal and should be required to transfer the case to this court.
W. D. Summers, W. L. McSpadden and Ball & Ryland for respondents.
Regardless of whether the appellate jurisdiction in the case mentioned in relator's petition is in the Supreme Court or the Court of Appeals, the writ should be denied. Respondent's return raises and was intended to raise for the determination of the court the question of the proper appellate practice, to the end that it may be finally decided by this court whether it is competent for the Court of Appeals, upon a motion to transfer a cause on the ground of alleged lack of jurisdiction, to order, as it did here, that the motion would be heard with the case. Relator's theory seems to be that because the statute in such case, section 3938, provides that when a case is sent on appeal to the wrong court, "it shall be the duty of such Court of Appeals, immediately on such fact coming to its attention, to order the transfer of the same to the Supreme Court;" therefore, whenever any litigant asserts, by motion or otherwise, that a case has been sent wrongfully to the Court of Appeals, that court must immediately order it transferred. Either the emphasis placed by relator on the word "immediately" used in the statute calls for this narrow and literal interpretation, or at least relator means that the Court of Appeals must in such case have a separate and preliminary hearing of such motion and may not be allowed in the orderly conduct of the business of the court to have the question of jurisdiction briefed, argued and submitted when the case comes on in due course. The respondents contend that the Legislature never intended for the language of this enactment to be so construed, and never contemplated that the Court of Appeals should not hear on brief and argument such a question, or any other question, before pronouncing judgment on it. The court could indeed pass on such a motion without hearing argument on same, and without the reasons pro and con for its action being made the subject of discussion either in brief or argument. Such plain cases sometimes occur, but the Court of Appeals is not bound in all cases to do this. It may avail itself of a hearing upon the question both by brief and argument to the end that no order may be made improvidently and without due consideration. Its practice in this regard is stated in the return. If perchance on hearing and consideration of the motion the court should decide that the jurisdiction in the case is not in the Supreme Court and should proceed to render judgment on the merits of the questions involved in the appeal, and if such determination of relator's motion should be wrong in the estimation of this court, prohibition or certiorari would then lie. State ex rel. v. Smith, 176 Mo. 90. In this case the preliminary rule, in any possible view of it, was prematurely issued. In Kansas City to use v. Surety Co., 196 Mo. 304, the motion to transfer was "taken with the case," jurisdiction retained and the case decided. In Milling Co. v. Blake, 242 Mo. 23, the same practice was followed and result reached. In Kettelhake v. Car & Foundry Co., 243 Mo. 412, the same practice was followed and the cause transferred without, of course, being decided. In State v. Doerries, 243 Mo. 626, the same result was reached.
OPINIONIn Banc
Prohibition.
This is an original proceeding in prohibition instituted in this court by the relator seeking to prohibit the judges of the Kansas City Court of Appeals from exercising jurisdiction in a certain cause brought by one Clara E. Liggett against the relator in the circuit court of Jackson county, to recover damages for personal injuries sustained by her through the alleged negligence of the relator, and in which a judgment was rendered in her favor for the sum of $ 2000, from which the relator appealed to the said Court of Appeals. The relator also asks this court to compel the respondents to certify the cause to this court for determination.
The facts of the case are undisputed and are stated by counsel for relator in substantially the following language:
The petition for prohibition was filed with the clerk of this court and with it was filed a certified copy of the order made by the Kansas City Court of Appeals upon the relator's motion to transfer the Liggett case to this court, and there was also filed as an exhibit to the petition a copy of the abstract of the record in the said Liggett case. Upon the petition being filed the court ordered a preliminary rule in prohibition to issue, and same being duly served the respondents filed a return wherein they made no denial of any of the allegations of the petition except they alleged that they had not refused to transfer the Liggett case to this court, but at the same time they admitted that they had made the order charged in the petition, which will be subsequently set out. The respondents then alleged that the petition filed by the relator fails to state facts sufficient to entitled it to a writ of prohibition. Thereupon in due course relator filed a motion for judgment upon the pleadings. The case is therefore up for decision on the facts set forth in the relator's petition and the exhibits filed therewith.
From relator's petition it appears that the case of Liggett v. Excelsior Powder Manufacturing Co. was tried upon the second count of the plaintiff's petition, wherein plaintiff alleged in substance that the defendant (relator here) operated a plant for manufacturing blasting powder near Holmes Park in Jackson county, which was situated near public schools and a public highway, to-wit, the railroad of the St. Louis & San Francisco Railroad Company, upon which it and the Kansas City Southern Railway Company operated trains; that by reason of the location of said plant its glaze mill, wherein were stored large quantities of blasting powder, was liable to explode and injure persons being or travelling in the near vicinity thereof and especially upon said railroad, and that by reason of said facts the maintenance of said powder plant at that place constituted it a continuous, common and public nuisance.
Plaintiff further alleged that one morning while she was passing said plant upon a passenger train of the Kansas City Southern Railway Company, there was an explosion in the glaze building of the plant, whereby the...
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