105 Mo. 299 | Mo. | 1891
This is a proceeding by prohibition against the judges of the Kansas City court of appeals, to restrain them from hearing and determining a certain cause in'which the state of Missouri is respondent, and relator, John Dugan, is appellant, and which cause is now pending in said court of appeals upon the appeal of relator from a judgment and sentence of the criminal court of Johnson county.
An alternative writ was issued from this court, and respondents have made return thereto. The writ charges, and the return admits, that relator was indicted, tried and convicted in the criminal court of Johnson county for the violation of what is popularly known as the “ local-option law,” in the city of Warrensburg, in which city it was charged that said law was in force; that, upon his trial in said court, relator defended upon the ground that said “local-option law” was repugnant to, and in violation of, the constitution of the state of Missouri, and that the constitutionality of the law was fully and fairly questioned upon the trial; that upon his conviction defendant, having filed in said criminal court the proper affidavit, prayed that an appeal be granted him to this court, which was denied him, and the transcript of the record and proceedings were ordered to be forwarded to the Kansas City court of appeals, which was done, and that respondents, the judges of said court, have taken cognizance of said appeal with a view of hearing and determining the same.
Relator insists that the Kansas City court of appeals has no jurisdiction of the appeal for the reason that the construction of the constitution of this state is involved therein.
Without undertaking to consider, and point out specifically, the provisions of the constitution, which are fairly involved in the record in this case, as appears from the writ and return, it is sufficient to say that the construction of this statute and its constitutionality
Respondents do not insist upon the right to pass upon, or decide, any constitutional question involved in the case; but insist that there is no longer any question as to the constitutionality of the “local-option law,” and no such question can be longer debatable.
The return contains a statement of the ground upon which respondents took jurisdiction of the appeal. They state that, “since the constitutionality of this law has been repeatedly upheld by the supreme court of this state, respondents considered the question put at rest, and no longer debatable, and that the raising said question was a mere sham and pretense, by which it was sought to have said cause transferred to and heard by the supreme court, and because thereof the motion to transfer was overruled.”
By the express terms of the constitution, which defines the appellate jurisdiction of the courts of appeals and this court, the supreme court is given exclusive jurisdiction of appeals, from circuit courts, and the courts having jurisdiction pertaining to circuit courts, in all cases “involving the construction of the constitution of the United States or of this State.” Art. 6, secs. 12 and 5, of the amendment of 1884.
The question arises here whether this court is ousted of its appellate jurisdiction by reason of the fact that the precise question involved had been previously passed
Substantially the same return was made to a writ of prohibition against the judges of the St. Louis court of appeals in the case of State ex rel. Campbell v. St. Louis Court of Appeals, 97 Mo. 281. This court in that case, speaking through Black, J., says: “It is made the duty of this court to determine constitutional questions when they are fairly raised by the record, and that court is without jurisdiction in such cases. * * * But the present inquiry is not as to the merits of these questions, or either of them, presented by the appeal. The inquiry is, does the record in the case of Carroll v. Campbell & Houck, as lodged in the court of appeals,
Our conclusion is that the record in this case fairly presents a question involving the construction of the constitution of this state, and that fact gives to this court exclusive appellate jurisdiction of the case. What its decision of the question involved may be, does not-affect the jurisdiction.
The rule to show cause is made absolute. Following the ruling in State ex rel. Campbell v. Court, supra, the court of appeals is directed to transfer the case to this court.