Britton v. Steber

62 Mo. 370 | Mo. | 1876

Per Curiam.

The court have examined this case attentively, and whilst there are many questions involved upon which doubts exist, they have unanimously arrived at the conclusion that the writ should be refused for the following reason: Our present constitution has organized an appellate court in St. Louis county and given to it final jurisdiction, except in certain specified instances, and the only casein which its judgment can be revised as to officers is where the title to an office under this State is brought in contest. In every case respecting the title to an office, not under the State, it was obviously intended that its judgment should be final.

If a writ of error will not lie or an appeal be granted, then certainly a certiorari, which in effect performs the functions of an appeal or writ of error, ought not to be granted. It would be permitting this court by indirect means to assume a jurisdiction which the constitution directly prohibits it from exercising by the usual modes of procedure. If the certiorari had been issued by the Court of Appeals, which possessed undoubted jurisdiction, and its judgment thereon was final, that would amount to a convincing argument that it was never intended that this court should take cognizance of the case. For there could not be under our system two courts of concurrent jurisdiction, each of whose determinations would be final. In all cases where this court is authorized to issue original remedial writs, its jurisdiction is simply concurrent, and the same matters can be determined, and usually are determined here, by appeal or writ of error in reviewing the judgments of the lower courts. The jurisdiction in both courts is undoubted, and it resolves itself into a question as to the tribunal in which the suit shall be instituted in the first place.

We do not regard the mayor of. a city as an officer under the State within the meaning of the constitutional provision. There is a recognized distinction between State officers, whose duties concern the State at large, or the general public, although exercised within defined territorial limits, and municipal officers, whose functions relate exclusively to the particular municipality. (Dill. Mun. Corp., § 33.) A State .officer may be connected with some of the municipal functions, but he must derive his powers from a State statute and exectite his powers in obedience to a State law. (State vs. Valle, 11 Mo., 29.) Whilst it is true, that the State grants the charter under which a city is organized and acts, yet those elected in obedience to that charter perform strictly municipal functions, and do not act in obedience to State laws in the manner enjoined upon State.-officers. Therefore, if the.mayor is not a State officer, in a contest relating to the title to the office, the Court of Appeals would be the court of last resort. But in the present ease this court is asked to assume jurisdiction where we think it is plain that it was not intended that we should have it. It is an attempt to get us to exercise a jurisdiction which the constitution by direct and reasonable intendment forbids. Where we are prohibited from acting upon a question on appeal or writ of error, we cannot upon any reasonable or just principle of construction take cognizance of it by certiorari.

A suggestion has been made that the Court of Appeals is incompetent to act on account of some of its members having been of counsel in the cause, but this can have no influence in the determination of the case. If this court has no jurisdiction, it Cannot assume to exercise it by reason of any extraneous consideration.

The writ must be refused.