*1 162 adopted

stitution 1875. cited We have never this case proval. Court, If it would this were now a Federal duty be the follow section. that court to our construction of this Railway Knapp, & Transfer the ease of Stout Co. v. St. Louis Co., 126 Mo. S. W. held that while this court right street, to authorize a to build switch track railroad im if switch track was so constructed that it made other traffic nuisance; also, if, built, possible public then it it prohibited was a abutting property using, private owner from an the street it was property owner, injury nuisance to the and as the inflicted calling equitable property permanent owner was it was a case ingress egress appellant’s In the case at bar the prop relief. erty impossible. with but will will be interfered not be made Oklahoma, Arizona, from Appellant Tennessee, also relies on cases and Texas. We have examined these cases and see reason for de- v. parting from the rule announced Clemens Connecticut Mutual Company, supra, where we followed the Life Insurance courts Colorado, Virginia, Louisiana. We Illinois, and have consist- West reported down ently the Clemens case to the last followed Wellston, supra. subject, rel. Becker v. State ex appellant what have said that the is not en- It follows sought action, injunctive relief in this as it has an ade- titled damages may quate remedy for have sustained. The affirmed. All concur. trial therefore relation and the use of the at the of Missouri the constituent members al., et Judge Relators, Nike G. of the Circuit Court of Cole Sevier, (2d) County. S. W. 903. Two,

Division June *2 Boyd, P. Counsel, Rogers, James General and Darnel G. Assistant Counsel, for Public Service Commission. Bond,

PL.P. and John respondent. O. Lauf COOLEY, -Original proceeding brought C. Commission, Commission, hereinafter called the Sevier, judge Honorable Nike G. of the Circuit Court of County. which, The case submitted pleadings, here on the -pertinent so far disposition to following.: of the show the 5, 1936, On Greyhound March Lines, the Southwestern Incorpo- rated, application the Commission an necessity for a certificate convenience and extend the operation passenger of its transportation system bus over highways, certain named which one of passed through, among others, city Wellington. The Commis- hearing application sion set the date for 13, said for May 1936, but upon city city Wellington failed' serve clerk copy as, application, 5268, said Section Missouri, required Laws 1931, page 307. appears section to be a substitution for See. [Said Ann., 1929, Mo. 6682. It further amended

5267, p. E. S. Stat. pp. 323, under section number of Laws in no The amendments refer to it section number. We shall By Section way said issue herein affect involved.] copy “shall cause a such provided hearing ten at least thereon to be served (application) and notice days any city . clerk hearing upon city . . before the operate, through may motor carrier desire to said into any city hereby party . an interested such . . declared alleged failed proceeding.” Wellington hearing city give proposed notice of only clerk a that it failed serve but plication. May filed with the Greyhound ground Lines’

a motion dismiss the *3 jurisdiction said applica- without hear that the Commission copy applica- with a of the not tion said had been served because day, motion. On the same Commission overruled that tion. The city clerk, Mann, John May filed 12th, city Wellington and its the County prohibi- petition a for writ of in Circuit Court of a the Cole prohibit with the against tion Commission to the ’ Greyhound ground Lines the proposed' hearing of on the because above- jurisdiction that the Commission was its application upon of the the failure to serve mentioned preliminary court issued its writ clerk. directing or before therein the Commission show cause on

also May why permanent. 18th the writ should be made County May 15, 1936, the Commission filed in Cole Circuit

On the plea motion, plea abatement, asking in a or called a the court Court prohibition order of to “set aside” abate plea. court disallowed said proceeding. The May 29, 1936, filed in this court issuing prohibit circuit court from prohibition the writ taking further writ in the action in said permanent case before 2; 1936, July provisional writ, issued its court, on com- case. This Sevier, Judge show manding respondent, cause or before the on issue, permanent writ should not and in August the why pending action in in no to take meantime County Circuit Court. July 31, writ duly filed return said in

Eespondent allegations contained in the petition of fact which he admitted belief prelim- his averred his that his prohibition filed lawfully Commission had been writ inary alleged that since the issuance of our writ new issued, facts and then a moot rendering ease to-wit: arisen had B-5049 number applicants in case respondent “Your states that the have Missouri Commission of Public Service Com- Public Service with the application now abandoned their exactly same seeking application filed a mission and have new noti- B-5049, application rights sought them case number interested all law and other City according fied the hearing'has held been parties, new application and that on said have and which issues issues submitted' Commission taken advisement. under subsequent to court respondent further informs the

“Your presented all issues were the time when City relator, application under new said of Cole Wellington, in the Circuit Court has dismissed its suit County; presented to the Circuit Court that the issues therein B-5049 number become moot because abandonment Greyhound Com- by the in the Public Service Southwestern Lines Missouri, mission said cause has been dis- of the State and since all the your respondent missed respondent’s court states questions respondent issues now and that before this are moot said, cause, longer pending reason of any action prohibition cannot exercise cause dismissed jurisdiction.

“WHEREFORE, your pre- respondent prays the court that liminary writ and that prohibition heretofore issued be dissolved be dismissed.” cause B-5049, respondent’s return,

Case No. above- referred is the Greyhound Incorpo- Lines, application mentioned of Southwestern *4 rated, hearing of before March filed the city sought which of its petition the above-mentioned in prohibited. the circuit court to have allegations respondent’s

There is no denial of the of return pleadings us, allegations in the fact before wherefore we take the true, therein here pleadings. as the case submitted on the [State Roehrig (2d) ex (banc), rel. Anderson Mo. S. W. 998.] proceeding In is instant relators assert that the the body; not a an court, but that administrative it cannot exercise judicial functions, did propose attempt do so not to so or to do B-5049, in said No. in exercise of that the its administrative subject or functions it is remedy, ministerial not to which claimed, judicial it is only usurpation is available prevent to au- thority; prohibition perform that cannot functions used to the be appeal, certiorari; grievances writ of or that it not error does lie for redressed’, may judicial in ordinary which proceed- be the course of ings, by writ of appeal or error and that the Public Service Com- redress for ample review and provides mission Law means for such, prohibition.

grievances without resort to complained that as think their consideration interesting questions These are but we arise, such should determination be reserved for some should in they live issues in a live case. are to us appears it return respondent’s facts stated in the Grey The clearly a moot case. that the before has become proposed abandoned its the Company hound Lines re prohibit. There hearing asked to of which the circuit court was" that it nothing prohibit, nothing mains for that court to — prohibition proceeding proposes attempt The could do or to do. may In this connection the circuit court has been dismissed. prohibition in well to mention "Wellington City appears been to have says city clerk, Mann, city respondent’s that the dismissed return necessary opinion city clerk, Mann, was that action. as not statute, de party 5268, supra, or a that action. Section real city, thereof, party to the clares the the clerk be an interested not proceeding requires applica the Commission. It necessity upon tion for certificate convenience and be served clerk obviously provision but the information and benefit city, clerk, supervision which has of its streets. The officer, authority, mere ministerial or clerical could have no as such officer, express authority, question least not shown and a —at , we need maintain or a suit on behalf institute consider— city, therefore, the use streets. The could affecting dismiss that suit. right as city’s

Relators here raise no to dis miss the circuit so far as concerns the fact Mann, clerk, was therein. petitioners named as one of the Their contention that after of our rule in issuance prohibition County authority the Cole Circuit Court shorn of any steps take it, to dismiss the —even action permit to be dismissed. A sufficient answer respondent’s return does not show that the court dismissed permitted action or its dismissal. far as appears So from the return may vacation, dismissal have thing plaintiff which the —a right that action payment of costs. [Sec. (Mo. S. 1929 Ann.,, R. says Stat. merely The return 1231).] p. “City Wellington Nothing has dismissed its suit.” the return or elsewhere in pleadings about costs, pay *5 ment nonpayment wrongful costs. cannot We assume action on part respondent city Wellington or of the circuit court. The was not named by restrained preliminary writ. does appear dismissing that action in circuit court wrongful was or unauthorized.

167-' permission, Even if the dismissal made in term time with was and authority, reason, court and think for hold- there we sound ing case, keeping the case now a moot in' that become prohibit instant purpose mind that was to re- spondent from now restraining purpose accom- by parties. nothing plished the action of the interested There remains by by prohibit, either court or the circuit court. this Thomas, Judge (en ex rel. E. Fischer Frederick et al. v. banc), 249 Mo. 155 W. certain in S. stockholders of an enjoin company brought surance suit the circuit court company contemplated consolidation another insurance- and and of a company, appointment ap for receiver. A receiver was notice, without pointed, possession and ordered to of certain take a'day appear and properties, the defendants were ordered and why receivership show should not be made named cause permanent. Application pro made to for writ of this court judge hibition Our of the circuit court. Thereafter plaintiffs receivership

writ issued. suit dis suit, quoted record, in the opinion missed that court this 249 Mo. reading, l. c. 107: day plaintiffs,

“Now on this in open come the and plication plaintiffs, is by this cause the court dismissed without: prejudice.

“Wherefore, adjudged and ordered the court this cause hereby dismissed; be and the same is said defendants discharged go day each of them hence have and recover herein, and from the said’ all plaintiffs costs execution issue therefor.

“And adjudged ordered and retain this court jurisdiction power receivership the receiver’s to settle account, allow compensation herein, receiver and to make all other, proper the'receivership orders in relation to ’’ herein. respondent

Thereafter court his return writ to our judgment pleadings. and the relators filed a motion on the We injunction held that reason of the dismissal of suit receivership the case here had become a moot case and should be Apropos us, applicable dismissed. now thereto and Lamm, J., speaking said, 249 108: for the court Mo. 1. c. ‘1 ease, best, or, This has become a mere moot an undisposed at of the taxation of below in that has costs a cause reached in the judgment its end a final court dis voluntary missal. questions

“We not sit court speculative as moot determine for the benefit of some other case some other at time. Mark prohibited the actual If situation. the circuit *6 The

proceeding by effectually itself. tono? has done —cui (except to receivership dead, henceforth of no use suit point moral)If pro- jurisdiction to a we held circuit court effectually hands own ceed ? tied’ its that suit—-wherefore It has Yet merits. finger adjudge the and could not lift a one if do proceeded judgment we have to we would on merits things or the other our of those either event two thing, viz., nothing. would Shall amount same settling (and be) has been business invited to about the serious squeak grave question jurisdiction, a mere turn aside to emit "We on costs the be-all matter? sit and end-all of the ’’ comedy in advance. Nothing, if know it of Much About Ado made rel. Thomas was Note dismissal in said case of State ex v. time issued, after term our writ had and was made in Also, request plaintiff. seems order there undisposed question costs. In the be been some to have squeak costs,” cannot even “emit a mere there fore us we litigation concerning presented. costs “If voluntary parties action of the concerned. terminated why litigate?” equivalent, ex Ash victory and defeat be rel. [State having 147 W. Imel, Mo. S. v. This ton all intents 992.] case, purposes become moot rule It is be dissolved and the dismissed. so ordered. herein should Bohling, CC., concur. Westhues foregoing opinion Cooley, C., adopted

PER. CURIAM: The Ellison, JJ., concur; Tipton Leedy, and’ opinion as the of the court. J., in result. concurs Lampson Appellants, Lampson, New Pearl

William County Building Corporation. S. Association, & Loan (2d) 911. W. Two, June

Division