author: BOND, J. LAMM, C. J.

text:
    MAMIE E. ROURKE et al. v. HOLMES STREET RAILWAY COMPANY et al., Appellants.
    In Banc,
    April 13, 1914.
    1. COURT OF APPEALS: Jurisdiction: Power of Legislature to Increase. The only power given by the amendment of 1884 to the Constitution to alter or change the express allotment designated by the Constitution of appellate jurisdiction between the Supreme Court and the courts of appeals was contained in the words “to increase or diminish the pecuniary limit of the jurisdiction of the courts of appeals;” and any attempt by the Legislature to confer jurisdiction on the Supreme Court on any other ground is beyond its power.
    2. -: -:---: Cases of Former Decision: Double Classification. The proviso added to Sec. 3937, R. S. 1909, by the General Assembly of 1911, in the words, “Provided that the Supreme Court shall retain and have exclusive appellate jurisdiction in any case pending in which the Supreme Court has made any decision,” is unconstitutional and void as to all eases which, without it, fall within the jurisdiction of the courts of appeals. The statute without that proviso is valid, but by enacting it the Legislature exhausted its power to change the jurisdiction of a case from the Supreme Court to a court of appeals. It fixed the jurisdiction of all cases involving less than $7500 in the courts of appeals, but the proviso attempted to divide that class of cases into two classes, namely, vesting the jurisdiction of a case involving less than $7500 in a court of appeals if it was one in which the Supreme Court had not made a previous decision, and vesting the jurisdiction of a case involving less than $7500 in the Supreme Court if said court had made a previous decision or ruling therein. There is no constitutional warrant for such attempted classification and discrimination.

      Held, by LAMM, C. J., dissenting, with whom BROWN and PARIS, JJ., concur, that the General Assembly has unlimited power to legislate except as its power is restricted or prohibited by the Constitution, and no law should be held to be unconstitutional unless it is clearly so beyond reasonable doubt; that the Constitution expressly gives the General ■ Assembly power to fix appellate jurisdiction by pecuniary limits, and there is no constitutional provision prohibiting it from fixing two pecuniary limits; that the Legislature having the power to write the pecuniary limits it necessarily has the power to fix them by metes and bounds; that the General Assembly has a constitutional power to classify if the classification is grounded in reason and is not violative of an express constitutional provision, and the classification made by the proviso is both natural and reasonable; and that the Act of 1909 contains a classification of cases involving less than $7500 in that it made no provision for the transfer of such cases “now under submission” in the Supreme Court; and that classification has been followed unquestioned.
    3. -: -: -: -:--: Cases Under Submission: Provided for by Constitution. The provision of the Act of 1909 excepting from transfer to the courts of appeals all cases involving less than $7500 then under submission in the Supreme Court was authorized by section 7 of the constitutional amendment of 1884, declaring that “all cases which may be pending in the Supreme Court at the time of the adoption of this amendment, which have been submitted, and which by its terms would come within the territorial jurisdiction of the Kansas City Court of Appeals, shall be certified and transferred to such court, to be heard and determined by it;” and hence that divisional classification of cases according to the pecuniary amount involved, was authorized by the Constitution itself.

      Held, by LAMM, C. X, dissenting; with whom BROWN and FARIS, XT., concur, that the said constitutional provision applied solely to the Kansas City Court of Appeals, and there is no constitutional provision for transferring cases “not under submission” to the other courts of appeals. Yet the Acts of 1901 and 1909 increasing the “pecuniary” jurisdiction of those courts required the Supreme Court to retain jurisdiction of cases falling within the pecuniary limit then under submission, and that was done; but if the majority opinion is correct, this court had jurisdiction . of none of them that pertained to “the territorial appellate jurisdiction” of the St. Louis and Springfield Courts of Appeals.
    4.--: -: -: Ruling of Court of Appeals.' A court of appeals has no authority to decide any case “involving the construction of the Constitution of this State,” and hence any views it may have of the constitutionality of the proviso to Sec. 3937, R. S. 1909, as manifested by a transfer of a cause to this court in the belief that it is without jurisdiction, is not persuasive argument of its constitutionality. [LAMM, C. X, dissenting.]

      Appeal from Jackson Circuit Court. — Now. Thomas J. Seehorn, Judge.
    Transferred to Kansas City Court of Appeals.

      John H. Lucas and E. JR. Morrison for appellants.

      Yates & Mastín for respondents; Perry S. Bader of counsel.
    STATEMENT.
    'Plaintiffs sued for injuries to their property caused by the building of an electric street railway, asking $35,000 as damages. The judgment was rendered for defendant from which plaintiffs appealed to this court (Rourke v. Railroad, 221 Mo. 46) where the judgment was reversed and the cause remanded.
    Upon a retrial, plaintiff had judgment for $5000 on October, 1910, in the circuit court of Jackson county, from which judgment defendant appealed to the Kansas City Court of Appeals. The case was lodged there until that court transferred it to this court under the amendment of section 3937, Revised Statutes 1909, by the act of the Legislature of March 30, 1911, Laws of 1911, p. 190.
   OPINION.

BOND, J.

(after stating the facts as above).— The question necessarily arising upon the transfer of this case to this court by the Kansas City Court of Appeals, is whether the attempted amendment by the Legislature of 1911 of section 3937 of the Revised Statutes of 1909 is constitutional? In order that the exact relation to each other of the previous act and the proposed amendment may appear, we insert that act and the proposed amendment in full with the latter italicized.

“Section 3937. The various courts of appeals of Missouri shall have jurisdiction of appeals and writs of error in all cases where the amount in dispute, exclusive of costs, shall not exceed the sum of seventy-five hundred dollars. All cases now pending in the Supreme Court, which have not been submitted, and which by the provisions of this section come within the jurisdiction of said courts of appeals, shall be certified and transferred to the proper courts of appeals, to be heard and determined by them, provided that the Supreme Court shall retain and have full exclusive appellate jurisdiction in any case pending in which the Supreme Court has made any decision or ruling

It is conceded that this case involves no subject nor any class of cases reviewable by this court, unless appellate jurisdiction was vested in it by the terms of the italicized proviso attempted to be added to the above section of the statute by the Legislature of 1911. At the time of the judgment from which the present appeal was taken, the pecuniary limit of the jurisdiction of this court included all cases wherein the amount in dispute, exclusive of costs, exceeded the sum of $7500, which was then the maximum of the jurisdiction of the courts of appeals. [R. S. 1909, sec. 3937.] This appeal having been taken to the Kansas City Court of Appeals from judgment rendered within its territorial district, that court was vested with exclusive appellate jurisdiction of the case under the constitutional grant (Wilson v. Drainage Dist., 237 Mo. l. c. 45; Drainage & Levee Dist. v. Jamison, 176 Mo. 557), unless that power has been taken away by the act of the Legislature, passed after the lodgment of the appeal. [Laws 1911, p. 190.]

In order to determine the power of the Legislature to alter the respective jurisdictions of the Supreme Court and the Courts of Appeals, it is necessary to make a brief reference to the provisions of the Constitution creating the courts of appeals and providing for the distribution of the appellate jurisdiction between them and the Supreme Court. The Constitution of 1875 established the first court of appeals (St. Louis) and gave it territorial jurisdiction over that city and four adjoining counties, with a right to review by appeals and writs of error taken from all judgments rendered within that district and provided that such review should be final in all cases except the following; as to each of which an appeal or writ of error would lie from the decision of the St. Louis Court of Appeals to this court. The cases thus excepted were, to-wit: “1. All cases where the amount in dispute, exclusive of costs, exceeds the sum of two thousand five hundred dollars; (2) in all cases involving the construction of the Constitution of the United States and this State; (3) in all eases where the validity of a treaty or statute of or authority exercised under the United States is drawn in the question; (4) in cases involving the construction of the revenue laws of this State, or the title to any office under this State; (5) in case involving the title to real estate; (6) in cases where a county or other political subdivision of the State or any State officer is a party; (7) and in all cases of felony. [Constitution 1875, art. 6, sec. 12.]

While this plan sifted out all cases of which the St. Louis Court of Appeals had the power of final review, it left the remainder subject to be prolonged by the appeals to that court and afterwards to a final review in this court. To avoid this delay and to provide other courts of appeals with aggregate territorial jurisdiction coextensive with the State, and to relieve the crowded docket of this court, a constitutional amendment was submitted to the people and adopted in November, 1884. .The objects had in view by that amendment where carried out by the establishing of the Kansas City Court of Appeals, which was granted exclusive jurisdiction identical as to subjects and amounts with that given to the St. Louis Court of Appeals, and a division between them of the entire territory of the State.

The amendment also provided for the establishing of another court of appeals by the General Assembly and vested it with authority to make an allotment of territorial jurisdiction for such court by the changing of the limits of the territorial jurisdiction of the courts of appeals then established. And also gave the General Assembly power, to-wit, ‘ ‘ To increase or diminish the pecuniary limit of the jurisdiction of the courts of appeals; to provide for the transfer of cases from one court of appeals to another court of appeals; to provide for the transfer of causes from a court of appeals to the Supreme Court, and to provide for the hearing and determination of such cases'by the courts to which they may be transferred.” [Amendment of 1884, sec. 3.]

The amendment further provided, with reference to the subject-matters of appellate jurisdiction in the courts of appeals, that the provisions of the Constitution concerning “the powers, the jurisdiction and proceedings of the St. Louis Court of Appeals, . ... shall . . . apply to the Kansas City Court of Appeals and to such additional courts of appeals as may be by law created. ’ ’ [Amendment of 1884, sec. 4.] The amendment of 1884 then in express terms granted exclusive appellate jurisdiction of all other causes than those within the jurisdiction of the courts of appeals, to the Supreme Court, and provided for direct appeals and writs of error to that court. [Amendment of 1884,. sec. 5.] The effect of this constitutional provision was to give the Supreme Court exclusive and direct power of review of all classes of cases mentioned above, arising in any part of tbe State from wbicb an appeal might have been taken to it from tbe decision of tbe St. Louis Court of Appeals under section 12, article 6, of tbe Constitution of 1875. [Steffen v. The City of St. Louis, 135 Mo. 44; State ex rel. v. Smith, 131 Mo. 176; State ex rel. v. Nortoni, 201 Mo. 1.]

Tbe only power given by tbe amendment of 1884 to future legislatures to change or alter tbe express-allotment by tbe Constitution of tbe appellate jurisdiction between this court and tbe courts of appeals,, is contained in tbe following terms, “To increase or diminish the pecuniary limit of the jurisdiction of the courts of appealsThere is not another line or word or syllable in tbe amendment of 1884 wbicb gives any other authority to any legislature to alter, change or reclassify any of tbe subjects of appellate jurisdiction specified and granted to this court and to tbe three courts of appeals. In tbe performance of this single function, tbe Legislature is a constitutional agent with limited and defined authority. Within tbe exercise of tbe power given to it, its action has all tbe force of a constitutional grant, but anything done by it outside of that authority is void, and without any binding force on any one. What tbe Constitution designed was to give tbe Legislature power to change tbe boundary of jurisdiction between this court and courts-of appeals, so far as it was divided by tbe amount in dispute in any case, by sliding tbe scale up or down. For it was reasonably anticipated by tbe framers of tbe Constitution that tbe growth and development of tbe State would make it proper to enlarge tbe pecuniary boundary of tbe courts of appeals or to adjust tbe scale so that a proper proportion of jurisdiction dependent on amount should be vested in each of tbe two appellate systems.

Tbe framers of tbe Constitution recognized that tbe act permitted to be done by tbe Legislature would necessarily affect the right of review on the part of the Supreme Court, as well as the courts' of appeals, of all cases where the appellate jurisdiction was hinged solely on the question of amount in dispute, and they were willing to entrust to the Legislature the fixing of the specific sum which should divide the jurisdiction as to all cases dependent on it. But the provision of the Constitution went no further. It gave the Legislature no more power to subdivide or classify the body of litigation thus divided and to transfer such subdivisions from one court to another, than it gave to it the right to transfer to this court the particular causes of actions on bills and notes, on open accounts, for equitable relief, to establish trusts in personal property or for torts. All of which would embrace under their respective heads homogeneous elements and would afford a more natural classification than the artificial one attempted to be formed out of the heterogenous list of cases, wherein this court might have made some prior ruling or decision either by original writs or on appeals. The only constitutional way in which the Legislature can deal with any of these distinct and separable causes of action, is by doing the particular thing delegated to it, the doing of which, would necessarily, at one and the same time, affect all said classes. If any other view could be maintained then it must logically follow that subsequent legislatures at different times might insert various provisos in an existing statute fixing the pecuniary limit of jurisdiction to the effect that such statute should not apply to certain of the several classes above mentioned, if the excepted class involved a dispute, for examples: exceeding one hundred dollars in one case, five dollars in a second, one thousand dollars in a third, two hundred and fifty in a fourth or one dollar in actions of tort. But it -is not conceivable that the framers of the Constitution designed to put it in the power of succeeding legislatures to accomplish such absurd results by varying at tbeir caprice the pecuniary boundary between the jurisdiction of the courts ■of appeals and this court as to the class to which it should be applied. This will be evident if the matter is viewed from another standpoint. Suppose instead of inserting the proviso of 1911 in the valid act which theretofore bounded the jurisdiction of the courts of appeals (R. S. 1909, sec. 3937), the Legislature at that time had enacted an independent law embodying the very classification expressed by the proviso. Could there be two opinions as to the unconstitutionality of such an act? Would not its very terms disclose a classification of causes irrespective of amount which were bodily transferred from the jurisdiction of the courts of appeals to the jurisdiction of this court? Is it possible to point to any power given to the Legislature by any provision of the Constitution to enact such a law altering the previous apportionment of jurisdiction by that instrument? If not, then the act would be wholly void. But if the Legislature would have no power to alter the constitutional grant of the jurisdiction by such independent act, necessarily it would have no power to do the same thing under the guise of a proviso embracing the same classification of cases. What it could not do directly it could not do indirectly. The Constitution having acted in the matter of separating the jurisdiction of the systems of courts, the Legislature could not thereafter change such relations, except in the precise mode and for the precise purpose pointed out by the Constitution. The proposition is so grounded on elementary constitutional principles as to have the force of an axiom. [State v. St. L., Iron Mt. & S. Railroad, 253 Mo. 642, and cases cited; Redmond v. Railroad, 225 Mo. l. c. 731; Bd. of Comm. Tub. Hos. Dist. v. Peter, 253 Mo. 520.] The Constitution gave the Legislature no power whatever to redistribute the jurisdiction which it had conferred upon the two sets of courts by reclassifying or inventing new classifications which, would subtract from tbe jurisdiction of one and add to tbe jurisdiction of tbe other. All itpermittedthe Legislature to do was to vary the money measure of" the jurisdiction so as to meet changed conditions. In exercising that function, it was competent for the Legislature, as it did on two occasions, to raise the pecuniary limit, and it might hereafter lower that pecuniary limit, but having done the one or the other, its constitutional authority was functus officio. By giving the legislature this special and particular authority, the constitution withheld from it any further power to act in the matter and where, as in the case at bar, it attempted to act by making a new classification of subjects regardless of the amount in controversy, it necessarily ignored the very purpose for which it was given power to act at all and acted for another purpose (classification) which transcended the only authority which the Constitution gave it to interfere at all with its own previous action in the matter.

II.

But we are not left to the conclusion as to the limitation of the power given to the Legislature under the terms in question, dictated by an analysis of their import, by process of reason and by fundamental principles of constitutional construction. For this court in Banc has directly adjudged that the Legislature can enact no law touching the jurisdiction of the courts of appeals until it can point to a specific amendment in the Constitution; for the reason that the Constitution •has conferred that jurisdiction, and its grant cannot be modified or altered except it has given power so to do. [State ex rel. v. Nixon, 232 Mo. 98; State ex rel. v. Nixon, 232 Mo. 496.]

The question involved in these two cases, was the power of the Legislature, after it had allotted to the three courts of appeals their respective territorial jurisdiction to pass an act whereby a case which had arisen in the territory of one of the courts of appeals could be transferred for decision to another court of appeals. The Legislature assumed the power to enact such a law under the language of section 3 of the amendment of 1884. That section gave it power to transfer causes from one court of appeals to another, " ‘ and to provide for the hearing and determination of such cases by the courts to which they may he transferred.” Acting under that authority the Legislature sent to the Springfield Court of Appeals the case of Houts v. Jackson, 143 Mo. App. 584, which had been tried at St. Louis and appealed after judgment for $5038 to this court, and by this court transferred to the St. Louis Court of Appeals, for that pending its submission here, the Legislature had increased the pecuniary limit of the courts of appeals to $7500 by section 3937 of the revision of 1909 (the very act to which the proviso under review was added in 1911). [Wilson v. Drainage Dist., 237 Mo. l. c. 41; Drainage Dist. v. Jamison, 176 Mo. 557.] The St. Louis Court of Appeals transferred the case to the Springfield Court of Appeals in pursuance of an act of the Legislature of 1909 (Laws 1909, p. 396), purporting to authorize such transfer. A writ of prohibition was sued out against the St. Louis Court of Appeals on the ground that the act authorizing it to transfer the cause exceeded the limit of power given to the Legislature by the above quoted words in section 3 of the amendment of 1884. Said this court in Banc, in making that writ permanent: “When the Constitution speaks on a subject, to the extent that it disposes of the matter, it ends all legislation concerning it.” [State ex rel. v. Nixon, 232 Mo. l. c. 101.]

The court then recited the history of the creation of the three courts of appeals and the exclusive appellate jurisdiction granted to them by the constitutional amendment of 1884 and referred to the two acts of the Legislature (Laws 1901, p. 107; Laws 1909,. p. 393), which increased the pecuniary limit of the jurisdiction of said courts and pointed out the constitutional authority of these two acts expressed in section 3 of the amendment .of 1884. The opinion then took up the act in judgment and stated the argument in its support based on so much of the language of section 3 of the amendment of 1884 as referred to the transfer of causes from one court of appeals to another, and to the provision for their determination which is quoted above. To the point that those quoted words implied a power in the Legislature to confer jurisdiction by transferring a cause from the territory of one court of appeals to another, this court said: “But that is not the language of the Constitution, nor its meaning. The Constitution itself had already declared the jurisdiction of those courts, both as to- the amount in dispute and as to territory, and it expressly authorized the General Assembly to alter the limit as to the amount and to alter the limits of the districts, and that was the extent to which it authorized the General Assembly to go in changing the jurisdiction. ’r (Italics mine.) [State ex rel. v. Nixon, 232 Mo. l. c. 104; State ex rel. v. Nixon, 232 Mo. 496.]

These two decisions in Banc settled the principle that the power given to the Legislature by the terms of section 3 of the amendment of 1884 excluded the doing of any act by it which shall affect the jurisdiction conferred by the Constitution in any other way than the exact mode expressed by the words of that section. This principle of limitation was applied by this court in the above cases to an act of the Legislature which sent a case to one court of appeals which had arisen in the territory which the Legislature had allotted to another. But that principle necessarily applies with the same constitutional force to an act of the Legislature which attempts to alter the jurisdiction of a class of cases vested in the courts of appeals by an act of tbe Legislature fixing tbe pecuniary limit of jurisdiction, with wbicb it was held to apply when the Legislature undertook to transfer the causes in contravention of its local division of jurisdiction. 'And this conclusion is expressly ruled in the above quoted language of this court in Banc.

No valid reason can be given why the Legislature is restricted by the Constitution in one case and not in. another.. The courts of appeals got their appellate jurisdiction of subjects or classes of eases within certain pecuniary limits, just as they got the territorial jurisdiction by the act of the Legislature in pursuance of a specific constitutional authority. [Amendment 1884, sec. 3.] And if the Legislature, after having acted so as to define the jurisdiction of the courts of appeals locally, is without power thereafter to alter such jurisdiction, then the Legislature, after having defined the jurisdiction of the courts of appeals pecuniarily, is also without jurisdiction thereafter to pick out a class within that pecuniary limit, and transfer that class, regardless of the amount involved, to the Supreme Court. The'prohibition in each case is that of the Constitution, against any alteration of its action except for the very object and in the exact mode which the Constitution permits its own grant to be affected. To my mind this conclusion rests upon irrefragable reason and the accordant decisions of the Court in Banc, and upon elementary constitutional principles.

The peculiar class of cases which would fall within the purview of the proviso affords a powerful inference that it was one of those many instances where our statute books have been littered with legislation enacted at personal request or to embrace some pending suit. But whatever inspired the proviso in question, it was a clear violation of the power to act,. given to the Legislature by section 3 of the amendment of 1884. Wherefore, I see no escape from the conelusion that the sole power to review the appeal taken in this cause is constitutionally lodged in the Kansas City Court of Appeals, to which, after deciding the unconstitutionality of the amendatory proviso, the case should be sent for disposition on its merits.

III.

Neither is it possible to uphold the proviso under review as legitimate classification by the Legislature of subjects, the jurisdiction of which it might change from the courts of appeals to this court, by calling attention to the terms of the section 3937 of the revision of 1909 which required this court .to transfer to the courts of appeals all, eases pending here which had not been submitted, at the time the act went into effect, and urging that this court, by complying with those terms and similar ones in the previous act, has conceded the right of the Legislature to change the jurisdiction between this court and the courts of appeals by its own classification of subjects.

To this notion it only need be answered that it loses sight of the fact that that classification was made in pursuance of a direct and express constitutional authority. In other words, the Legislature put in its general act defining the pecuniary limit of jurisdiction no classification of its own, but only the very requirements which the Constitution itself had imposed on this court, and therefore, this court in recognizing its duty to send to the courts of appeals all cases pending here which had not been submitted at the time of the passage of the act under which they would fall into their jurisdiction, was only obeying the mandate of the Constitution, and was not recognizing any power of classification in the Legislature. This is apparent when it is observed that the terms of the act referring to cases not submitted (R. S. 1909, sec. 3937) were simply a rescript of the following constitutional provision: “Cases now pending in the Supreme Court transferred to the Kansas City Court of Appeals. All cases which may he pending in the Supreme Court at the time of the adoption of this amendment, which have not been submitted, and which by its terms would come within the territorial appellate jurisdiction of the Kansas City Court of Appeals, shall he certified and transferred to such court, to he heard and determined by it.” (Italics mine.) [Sec. 7, Amendment of 1884; Constitution of 1875, art. 6, sec. 191.]

Clearly this constitutional provision is of continuing force, and governs the disposition of cases hot submitted when subsequent changes were constitutionally made in the relative jurisdiction of the Supreme Court and the courts of appeals. Under the guidance of and to effectuate this constitutional regulation, the Legislature inserted in its general act altering the pecuniary limit of the jurisdiction of this court and the courts of appeals, the provision requiring the transfer of cases according to the standard fixed by the act. Hence, its observance by the court was only for the reason that the Constitution, not the Legislature, made it obligatory. And it has been decided by this court that the power of the Legislature to pass any act providing for transfers of cases between the courts of appeals and to the Supreme Court, is sustainable solely on the ground of a specific authority so to do, given by the Constitution. [In re Garesche, 85 Mo. 469; Affirmed, Schuster v. Weiss, 114 Mo. l. c. 172.]

If it could he held therefore (which we do not concede) that the Constitution designed to regulate the transfer of cases only to one court (the Kansas City Court of Appeals) and did not design that the same rule should govern transfers of cases similarly situated to the other courts of appeals, then under the explicit rulings of the two decisions last cited, the Legislature had no constitutional power to enact the provision in question as far as the St. Louis and Springfield Courts ■of Appeals are concerned, for they are not mentioned in the act. And even if this court had followed the act as to said courts, that would not have supplied the lack of constitutional power in the Legislature, and necessarily would not have shown that the Legislature was making a valid classification of subjects of appellate jurisdiction between this court and the •courts of appeals under any constitutional authority given to it.

It is clear that no conclusion can be drawn from the presence in the act of the language authorizing the transfer of cases “not submitted” at the time of the fixing of the pecuniary boundary of the jurisdiction of the respective courts, that the Legislature had any constitutional power to put in the same act (by the amendment of 1911), a clause divesting the courts •of appeals of their jurisdiction of any case wherein this court had, made a previous ruling or decision.

What the Constitution intended and expressly provided was, that the three courts of appeals should have the same jurisdiction as to subjects of review, exert the same judicial powers, entertain the same proceedings, and be governed by the same rules; and this purpose is expressly set forth in the words of the amendment of 1884. [Amendment 1884, sec. 4.]

But besides all this, there is not even an attempt at classification by the use of the words “not submitted.” All that was intended by them was to ftoo the time when the law dividing the jurisdictions should take effect. The purpose being to fix a time before the decision of the cases to be effected, and hence, the time adopted was a period when a decision had not been made.

The whole effort to build an argument of power to classify from the use of these terms, is based on two erroneous assumptions. First, the assumption of a power which did not exist; second, the assumption of a classification which was not made. From these incorrect premises no correct conclusion can be deduced of constitutional power in the Legislature to amend the act of 1909 as attempted by the proviso inserted in 1911.

IY.

It is hardly necessary to refer to the suggestion as to the “persuasiveness” of the ruling of the Kansas City Court of Appeals in sending this case here after the enactment of the proviso by the Legislature of 1911. The Kansas City Court of Appeals had no power to decide any case “involving the construction of the Constitution of this State.” The amendatory act of 1911 presented on its face that question. The Kansas City Court of Appeals therefore, with perfect propriety, transferred the case to this court to the end that the constitutionality of the act should be first considered by the only court permitted to solve that question under our judicial system. The Kansas City Court of Appeals withheld any expression of its own views as to the validity of the act, but read its terms of attempted classification of cases irrespective of the limit of its own jurisdiction and promptly transmitted the record to this court as the only authority which could decide the question presented by the terms of the act. The mere action of sending to this court a case falling within the letter of the new act, could not in the nature of the things afford any greater persuasive authority for a holding by us that the act was constitutional, than we could have from a mere reading of the act itself.

V.

It is finally suggested that the question of the constitutionality of the proviso was “settled” by the ruling of Curtis v. Sexton, 252 Mo. 221. A brief reference to that opinion will demonstrate that it made no ruling whatever on the ground of attack directed at the act of 1911 which is now called to the attention of this court. The point that the Legislature transcended the constitutional limit of its power to act only on the subjects or classes of the appellate jurisdiction of the courts of appeals so as ilto increase or diminish the amount” upon which their jurisdiction was predicated, by altering it with respect to the entire subject-matter of .that jurisdiction, was not raised nor called to the attention of the court nor passed upon in that case, nor even referred to in the remotest way by anything that was said in that opinion. This is proven by the following extract from that opinion:

“The constitutional objections urged are those relating to the passage of local laws, and laws touching upon ‘class legislation.’ No specifications are furnished us by counsel showing wherein a provision of this sort violates the law forbidding class legislation, nor do we know of any such reason. The law applies to all pending cases, both those which are here and those which shall hereafter be appealed to this court wherein this court shall prior to the passage of the act, have made some decision and ruling. We rule this point against defendant.” [Curtis v. Sexton, 252 Mo. l. c. 253.]

That case not only did not settle the point now under review, but it is not even persioasive authority, since it gives no expression whatever on the question which now has- arisen for judgment, but which was neither in judgment nor touched upon there. There is no exception to the doctrine established in this State and elsewhere, that where a prior decision does not rule upon or refer to a ground of attack made upon an act of the Legislature in a subsequent case, the former decision is without any authority whatever in the decision of the later case. [Koerner v. St. Louis Car Co., 209 Mo. l. c. 156; State ex rel. v. St. Louis, 241 Mo. l. c. 239.] But a careful analysis of the ruling in Curtis v. Sexton will disclose that what, in effect, was held there, to-wit, that the act of. 1911 constructed a class of cases, furnishes a conclusive reason why the act must fall under the present constitutional attack. This is so because the Legislature had no constitutional power to classify, its only authority being to change the pecuniary limit of jurisdiction. And it is wholly illogical to say, that the Legislature was acting in accordance with a power to change the amount in dispute when it left that matter entirely out of view and made the class of cases sought to he created, depend for their existence solely upon the factitious circumstance that a prior ruling or decision had been made in them at some earlier stage by this court. In other words the Legislature could not have acted in conformity with the Constitution while ignoring the only object for which it authorized the lawmakers to act. Hence it follows that its attempt to withdraw jurisdiction from the court of appeals of a class of cases was devoid of any constitutional authority and its act in so doing is patently void.

YI.

It is a matter of the greatest importance to the people of this State that the courts of appeals shall be allowed to exercise the jurisdiction expressly conferred on them by the Constitution as amended. This court has not an atom of power to withdraw any jurisdiction of cases granted exclusively to the courts of appeals by the Constitution. This court is itself a creature' of the Constitution and cannot without usurpation annul the very authority to which it owes its being It is* the pinnacle of the judicial system devised by the Constitution to administer the law, and to enforce its supremacy.

It has been shown that the lawmaking body attempted, by the proviso to a previous valid act, to create an unrelated and artificial class of cases which should be transferred without reference to any constitutional authority so to do, from the subject-matter of appellate jurisdiction of the courts of appeals.- This appears on the face of the act and by any possible construction which can be given to it. It is a self-evident proposition that the Legislature was powerless to do this, and that this court is equally powerless to validate its attempt so to do. The commands and limitations of the Constitution may be altered or amended by the people in the exercise of the powers reserved in that instrument, but until that is done, they are beyond the control of the courts or the. Legislature, for neither of them are framers of constitutions.

This court is content to move in the orbit prescribed for it by the instrument to which it owes its creation. If it leaves that course, the whole system of government is at onc,e deranged by the infraction of the laws upon which it is founded and by which it is regulated and controlled. That no other tribunal can coerce or restrain its action is the moral reason which makes self-restraint an imperative duty. Though possessed of unchecked power, this court will steadily pursue the paramount behests of right action, and thus refute detraction and silence “envious tongues” uttering the misjudgments of the judiciary, which distort the popular fancy of the hour.

We accordingly hold that the proviso attempted to be inserted by the Legislature in 1911 (Laws 1911, p. 190) is void, because it is beyond the scope of the power conferred upon the Legislature by the Constitution as amended in 1884. This resiilt does not affect the validity of the act of 19091 (R. S. 1909, sec. 3937) which established the present • criterion of jurisdiction of the courts of appeals in respect to the amount in dispute. For that or any similar future enactment is within the just authority given the Legislature under the present Constitution.

It is evident that the determination of the present appeal in the case at bar is vested in the Kansas City Court of Appeals and the cause is hereby transferred to that court.

Woodson, Graves and Walker, JJ.r concur; Lamm,, G. J., dissents in opinion filed in which Brown and Faris, JJ., join.

DISSENTING OPINION.

LAMM, C. J.

This cause, having been heretofore-in this court, on a new appeal was sent to the Kansas City Court of Appeals and by that court was transferred to this court because of a statute- enacted in 1911, infra.

A preliminary question, viz., one of jurisdiction,, was raised by the court sua sponte and the case is made to break on that. To that result I cannot agree,, because:

The Constitution, (sec. 3 of the Amendment of' 1884) reads:

“The General Assembly shall have power by law to create one additional court of appeals-, with a new district therefor; to change the limits of the appellate districts, and the names of the courts of appeals, designating the districts by numbers or otherwise; to change the time of holding the terms of said courts; to increase or diminish the pecuniary limit of the jurisdiction of the courts of appeals; to provide for the transfer of cases from one court of appeals to another court of appeals; to provide for the transfer of cases-from a court of appeals to the Supreme Court, and to provide for the hearing and determination of such cases by the courts to which they may be transferred. ’ ’

Under that grant of power the General Assembly,, having in 1901 and 1909 enacted statutes, finally in 1911 (Laws 1911, p. 190) amended section 3937,. Revised Statutes 1909, so as to read as follows:

“The various courts of appeals of Missouri shall have jurisdiction of appeals and writs of error in all cases where the amount in dispute, exclusive of costs, shall not exceed the sum of seventy-five hundred dollars. All cases now pending in the Supreme Court, which have not been submitted, and which by the provisions of this section come within the jurisdiction of said courts of appeals, shall be certified and transferred to the proper courts of appeals, to be heard and determined by them, provided that the Supreme Court shall retain and have full exclusive appellate jurisdiction in any case pending in which the Supreme Court has made any decision or ruling.”

The change made by the amendment of 1911 was the addition of the italicized proviso. If that proviso is constitutional, we have jurisdiction — otherwise, otherwise.

I am of opinion the proviso stands as a valid exercise of legislative power, because:

(a) We are strictly admonished by canonized rules that courts approach the adjudication of the unconstitutionality of an act of the law-making power with caution and gravity. So, they must resolve all •doubts in favor of such act. So, before such act is declared invalid it must be shown to be so clearly bad that its vice is put beyond any reasonable doubt. Then, too, every reasonable intendment must be allowed in favor of the act, so that if possible it may stand, not perish. Every allowable act, art or part of judicial power, resting in reason, must be called into play to uphold the act. To that end, if a certain construction brings the act under the ban of unconstitutionality and any other construction within reason is permissible, taking it from under such ban, we are bound to be astute in accepting that construction; for the most pregnant and solemn reasons underlie the foregoing doctrines. It is in the light of those doctrines, and not otherwise, the question must be ruled. [In re Board of Com’rs Tuberculosis Hosp. Dist. v. Peter, Intervenor, 253 Mo. 520.]

It is said the life story of a chicken is told in the phrase, “from egg to ax.” It will be seen from the foregoing view that such crisp and dramatic summary is mal apropos in dealing with laws, and yet — but let the playful conceit in mind go unsaid in order to pick up the thread of sober judicial exposition.

(b) By the 1884 amendment to the Constitution the “pecuniary limit” of appellate jurisdiction was dropped as a constitutional provision and the Legislature was granted power to prescribe such limit.- Up to that time the Constitution itself prescribed the pecuniary limit. [Constitution, sec. 12, art. 6.] With the “pecuniary limit” thus put by that amendment within legislative regulation and released from constitutional regulation, the Legislature took up the subject-matter and passed the proviso. When read with the act of which it is a part, the proviso deals with the pecuniary limit of jurisdiction as its motive and end. If anything else is drawn within the line of the enactment (which I do not admit) it is only incidentally and in contribution to the principal motive and end and cannot furnish a constitutional test. In effect the statute means the courts of appeal shall have jurisdiction, with reference to pecuniary amount, in all cases where the amount in dispute does not exceed seventy-five hundred dollars, except in eases pending in the Supreme Court or in the circuit court, in which the Supreme Court has made a decision or ruling, and, as to them, courts of appeal shall not have jurisdiction, but the Supreme Court shall have jurisdiction in any amount. Clearly, the Legislature by that act did not undertake to overleap constitutional barriers and foist jurisdiction upon this court of any ■subject-matter except the one relating to pecuniary limit. Mark, it behooves us to see and admit, I think, that the act does not undertake to alter, affect or in aught deal with the express and enumerated constitutional subjects of jurisdiction lying outside of pecuniary limit. It leaves untouched cases under our constitutional jurisdiction, to-wit, those involving title to land, revenue, constitutional or Federal questions, title to office under this State, or cases where a county is a party. [Constitution, sec. 12, art. 6.] That is to say, cases of that ilk come here automatically whether we have once ruled thereon, dr whether 'we have not theretofqre ruled thereon. It establishes a pecuniary limit with an exception to the effect that in a case in which we have ruled or made a decision the seventy-five hundred dollar pecuniary limit, ordained by the principal statute, is not the minimum pecuniary limit of our jurisdiction. But that, as to such case, there is another pecuniary limit, to-wit, any amount whatever. The statute is susceptible of that construction and, if necessary, we are bound to give it that construction, rather than another, to sustain it as valid rather than expand its meaning so as to impinge upon the other heads of our jurisdiction. It is a most singular fact that while the Constitution gives this court appellate jurisdiction in general language (sec. 2, art. 6) and superintending control ana power to issue certain original writs (sec. 3, art. 6) yet it nowhere parcels out appellate jurisdiction between this court and the courts of appeal except by a side stroke and by indirection. In delimitating our jurisdiction on appeal in material features and to make the Constitution a working instrument, we have been forced to do so by inference, by judicial construction of a pronounced character in dealing with section 12, article 6 (q. v.) — a section directed primarily to appeals from the St. Louis Court of Appeals to this court, a scheme now abandoned. I mention this to show how much our jurisdiction owes to the exercise of judicial construetion, and we ought not to hesitate, to use it in perfecting our jurisdiction.

(c) Again, all legislative power lies in the General Assembly of Missouri except in so far- as it be directly or by inexorable implication forbidden by the State or Federal Constitution. So much, I take it, is a truism in constitutional law. [State ex rel. v. Sheppard, 192 Mo. l. c. 506 et seq.] The Federal Constitution grants power to Congress to legislate, the State Constitution leaves to the State Legislature all legislative power it does not take away. Giving full force to that principle,, a vital and main question springs spontaneously, to-wit: Where is the constitutional provision prohibiting the General Assembly from fixing two or more pecuniary limits? Who can put his finger on it in the Constitution? Nay, why should it be there ? Is not' the law-maker authorized by the Constitution to write the pecuniary limits — to- prescribe them by metes and bounds? With the constitutional hand in that regard lifted, and the legislative hand laid on, was it not intended that the law-maker should have leave to act reasonably and deal with it with the usual full-fledged legislative power, to-wit, a power to classify? When that question is answered, yes, as. it should be, I respectfully submit, all trouble and doubt disappear. In dealing with the subject-matter of pecuniary limits the lawmaker might not make an unnatural or unreasonable classification, and thus bring himself within the interdiction of the Constitution against special or class legislation. Nor might he cut away from us our jurisdiction' of a subject-matter plainly set down in the Constitution. All that is beyond his power. But in this instance he has done neither the one nor the other. As already pointed out, the constitutional limits of our jurisdiction on other matters are left untouched by the proviso, and it has primary reference to the subject-matter of pecuniary limit only, with, what I conceive to be, a constitutional, i. e., a reasonable and natural classification. Is not classification a favorite legislative scheme which we constantly sustain as constitutional if grounded in reason? Clearly so, and that theory sustains the act of 1911, to my mind.

(d) We may with profit consider the terms of section 3937 before it was amended by the 1911 proviso. It will be found to deal itself with a classification. Are all cases under the Act of 1909, where less than seventy-five hundred dollars are in dispute, to be transferred to the courts of appeal? No. Those' “which have been submitted,” are exempted. Admit that the classification is small or rudimentary, yet it is' there plainly put in the law of 1909. Is that exemption, also, unconstitutional as outside of legislative power? If so we have violated the Constitution many times; for we retained jurisdiction of all cases of that class existing at the time the original, act went into effect in 1909.

doing back a little further, in 1901 (Laws 1901, p. 107), a statute was enacted with the same classification or exemption in pecuniary limit as that of 1909, to-wit, the “under submission” exemption, and we accepted and acted on it as valid. Is this long continued and practical construction worthless as a constitutional guide? I do not so understand the rule.

But the majority opinion, inadvertently I think, seeks to parry the force of the invoked, the practical and long existing construction, whereby that rudimentary classification anent pecuniary amount was allowed as valid. This by pointing to a provision of the Constitution said to permit .it. Let us look to that. The provision is (sec. 7, art. 6):

“Gases now pending in Supreme Court transferred to Kansas City Court of Appeals. — All cases which may be pending in the Supreme Court at the time of the adoption of this amendment, which have not been submitted, and which by its terms would come within the territorial appellate jurisdiction of the Kansas City Court of Appeals, shall he certified and transferred to such court, to be heard and determined by it.”

It will be observed that such provision relates solely to the Kansas City Court of Appeals and establishes a modus transferendi for sending cases from this court to that. There is no such constitutional provision relating to any other court of appeals and holding in this court cases that are “under submission.” Despite that limited and preclusive grant of power, the Legislature passed a general law, to-wit, section 3937, supra, including all courts of appeals.

It is on that statutory warrant and not otherwise that we have been acting from time to time in sending-only those cases “not under submission” to the St. Louis Court of Appeals and the Springfield Court of Appeals and in retaining those under submission. So that it is just to say, as we have said, .that we have allowed the idea of classification to obtain on the subject-matter of pecuniary limit of jurisdiction. If we were right in so doing, then why is this dissent not justified?'

(e) Moreover, the identical question has been ruled and is not open as res integra. In Curtis v. Sexton, 252 Mo. 221, the question of our jurisdiction was raised by counsel. It hinged upon the validity of the proviso in question. In that case we assumed jurisdiction. Handed over to us by the Kansas City Court of Appeals on the strength of the proviso, we sustained the constitutionality of the law by deciding the case and ruling the point agreeably to the ruling proposed in this dissenting opinion. It is clear that if we have no jurisdiction of the present case, then we had no jurisdiction in the Curtis-Sexton case, and all the weighty and far-reaching matter there adjudicated tumbles' down like a house of cards, as declared and decided in a case in which we had no jurisdiction to say anything at all. Stare decisis.

So, the Kansas City Court of Appeals construed the proviso in the Act of 1911 to give us jurisdiction in the instant case and in the Curtis-Sexton case. Is not the holding of that learned court, though not put on constitutional grounds (as it could not be), at least persuasive!

The act is too young to permit of many precedents in construction, but such as exist are worth while and run in favor of the validity of the law.

(f) It has been argued that, conceding the doctrine of classification as applicable, yet the classification attempted is unnatural and unreasonable. But is it! The division of cases into (1) those that are pending in or have been to this court and are now below, and in which we have made a decision or a ruling, and (2) those in which such condition does not arise, is, to my mind, natural, logical and entirely wise. It prevents mischievous confusion and the perpetuation of error “broadening down from precedent to precedent.” It is in no just constitutional sense class or special legislation as denounced in cases expounding the Constitution. Take a case to illustrate: We reverse and remand a case for a new trial. Such new trial is had. In the meantime the Legislature has changed the pecuniary limit of jurisdiction, or the new judgment falls below the old one and thus affects jurisdiction, absent the proviso. In such case, under the former law, the new appeal went to one of the courts of appeal. See what happens! Automatically, by mandate of the Constitution, the court of appeals is bound, nolens volens, by our former decision, right or wrong, and the door of judicial investigation is forever closed on that question (despite the mischief) until such time, withal, as another case reaches us carrying the point. Such is no fanciful hypothesis. It has arisen over and over. It is precisely what would have happened in Bagnell Timber Company v. Missouri, Kansas and Texas Railroad Company, 242 Mo. 11. The several courts of appeal were following our first erroneous opinion in that case on a vital principle of law of everyday application. [180 Mo. 420.] They were obliged to do so by the Constitution and would have continued to do so had it not happened, fortunately, that the case reached this court on its second appeal, when we corrected our own error in the same case.

More could be said in favor of the justness, the wisdom, the constitutionality of the proviso if need called or time allowed.

The statute as it stands prescribes a general rule of jurisdiction on amount, disposing of all eases, and the classification made by the proviso seems to me to be just and constitutional.

It has been suggested that the use of the word “or” precludes the construction we have put upon the Constitution and statute. The argument, as advanced, runs thus: By using the disjunctive conjunction “or” in the Constitution, power is left to the Legislature to increase “or” diminish the pecuniary limit but not to do both at one stroke. But I conceive that to be too narrow and precarious a point upon which to rule the unconstitutionality of the law in question.

Is it likely that a Constitution-maker, intent on large themes, would intend to make a grave constitutional provision turn on “or,” “and,” “a,” “the,” et hoc genus omne¶ That would be, by judicial construction, to turn a mere linguistic pin prick into the stroke of a hammer (St. Louis v. Handlan, 242 Mo. l. c. 94) or make a mountain out of a mole hill.

It is familiar doctrine that where an absurd result will be prevented or where another construction is useful to further a legislative intent or to give a constitutional provision full and rounded vigor in order to cover its true and whole intendment the word “or” may be read “and” and vice versa; that is frequently done. [State v. Bulling, 100 Mo. l. c. 93; 29 Cyc. 1505 et seq., where many authorities are assembled on the proposition.]

Deeming it an unhappy circumstance that the point has to be ruled without the aid of brief or argument by counsel, for the point is not made by them, but is sprung ex mero motu by the court, I have given my views on this matter, one of pronounced importance. Those views compel me to dissent and that I do.

Brown and Faris, JJ., join me herein.


source: Caselaw Access Project

author: BROWN, J.,

license: Public Domain

text:
    THE STATE ex rel. EDWARD J. LAMPORT v. HARRIS ROBINSON, Judge of Circuit Court.
    In Banc,
    April 13, 1914.
    1. MANDAMUS: Remedy by Appeal. Mandamus may lie to compel an inferior court to hear and determine a cause or matter in issue of which it has jurisdiction but refuses to perform a plain legal duty. But when a circuit court has exercised its entire jurisdiction by fully hearing a cause and rendering final judgment therein, its errors committed during the trial must be corrected by appeal or writ of error, even though the trial was begun before a jury at one regular term and finished before the same jury at the next term.

      2. -: -: Trial Begun at One Term and Concluded at Another. The remedy of a plaintiff, in his suit begun at one term, and, after the adjournment of court in course, concluded at the next term before the same jury, resulting in a final judgment for defendant, is by appeal or writ of error, and not by mandamus to compel the trial judge to replace the case on the docket and proceed to try it anew.
    3. -: -: -: Bill of Exceptions. And though the trial of the case was begun only a few days before the end of the term, against plaintiff’s protest on the ground that it could not be. concluded before the adjournment of the term by lapse of time, and though the trial judge on Friday con-tinned tbe case to tbe next Monday when tbe next regular term by statute was required to begin, tbe plaintiff was, at any time before actual adjournment on Saturday, entitled to ask for an order granting bim sufficient time to prepare and file sucb exceptions as be bad saved at thatJ term, and thereby prepare for bis appeal.
    Mandamus.
    Writ denied.

      Martin J. O’Donnell for relator.
    (1) The circuit court was without jurisdiction to finish the trial at the May, 1913, term. State v. Jeffors, 64 Mo. 376; 12 Cyc. 271; 12 Ency. PI. & Pr., p. 658; 24 Cyc. 263; Sec. 4015, R. S. 1909; Laws 1911, p. 174; Laws 1913, pp. 217-18; Rules of the Circuit Court, Jackson County, Mo. Sec. 3876, R. S. 1909, did not give the court and jury power to proceed with the trial. This statute was in force at the time of the decision in the Jeffors case, supra. (2) The rules of the circuit court of Jackson county have the force and effect of law and when a mistrial occurred "by the discharge of the jury it was the duty of respondent, acting as judge of said court, to immediately return said case to the general docket. Rule 22, Circuit Court, Jackson County, Missouri; Laws 1913, pp. 211-12; Rigdon v. Ferguson, 172 Mo. 52; 2 Bouvier’s Law Dictionary, p. 428. “ ‘Mistrial’ is equivalent to no trial.” Baird v. Railroad, 61 Iowa, 359'. Rule 22 requires that, “whenever the trial of a case shall result in a mistrial, said case shall he immediately returned to the general docket.” (3) The trial court having plainly erred on a point of practice in misapprehending its own rules, and also in misapprehending a plain rule of law, and thereby prevented a trial of the cause, mandamus will lie from the Supreme Court to remedy the error. State ex rel. v. Phillips, ■97 Mo. 332.

      J. C. Rosenberger, Kersey Coates Reed and Rollin E. Talbert for respondent.
    (1) This is not a proper case for mandamus, irrespective of whether the rulings of the respondent were right or wrong. Mandamus will not lie to annul judgments, however erroneous. In such cases appeal or error are exclusive remedies. State ex rel. v. Thurman, 232 Mo. 130'; State ex rel. v. Smith, 105 Mo. 6; Williams v. Judge, 27 Mo. 225; Dunklin County v. District Court, 23 Mo. 453; State ex rel. v. Court of Appeals, 87 Mo. 374; State ex rel. v. Lafayette County, 41 Mo. 225; State ex rel. v. Walker, 85 Mo. App. 247; State ex rel. v. Broaddus, 207 M'o. 124. (2) Relator since the institution of this suit, to-wit, November 6, 1913, has filed, a motion before respondent judge to vacate the orders overruling his motions for a new trial and in arrest and for judgment non obstante; which motion is now pending before respondent, so that relator by said motion is now attempting to obtain in the circuit court all the relief he now asks in this court, and wherefore this mandamus should be refused. Relator cannot proceed both in the circuit court and in this court, especially by mandamus. By filing such motion to vacate, the relator has conclusively admitted that he has not exhausted his alleged remedy before respondent and for this reason alone mandamus should be denied. State ex rel. v. Weeks, 93 Mo. 499; State ex rel. v. Miller, 129 Mo. App. 390'. (3) By express statutory enactment the ending of the term did not destroy the court’s power to proceed with the trial, nor did it operate to discharge the jury. State v. Samuel, 3 Mo. 69; R. S. 1909, sec. 3876; Pike Co. v. Hammons, 129 Ind. 3801; Sutherlin v. State, 150 Ind. 154; Machine Co. v. McCaffrey, 139 Ind. 558; People v. Warden, 117 App. Div. (N. Y.) 154, 192 N. Y. Supp. 374; Mapstrick v. Range, 9 Neb. 394; State v. Hasty, 76 S. C. 105; State v. McGrinsey, 80 N. C. 377; Briceland v. Commonwealth., 74 Pa. St. 463; Carroll v. Commonwealth, 84 Pa. St. 107.
   BROWN, J.,

Mandamus to compel a division of the circuit court of Jackson County to return a case to the general docket of said court.

The facts upon which our alternative writ was issued in this case are as follows:

The respondent is the judge of division No. 9 of the circuit court of Jackson county, and in administering the duties of said office was governed by certain rules which had been theretofore adopted and promulgated by the several judges of the circuit court of said county sitting as a court in banc.

Rule 13 requires the clerk to place all cases on one general docket.

Rule 18 provides that the several judges of the circuit court of Jackson county shall select one of their number as presiding judge, who shall designate the eases to be heard in bach division of said court.

£ ‘Rule 22. Assignment of Cases. At least two weeks before the beginning of each term, and as often thereafter as may be necessary, the presiding judge shall cause to be posted on the bulletin boards in the assignment division and the circuit clerk’s office a notice requiring attorneys to file with the clerk of the assignment division on or before the date fixed in said notice a memorandum of each case at issue of which a trial is desired, between the numbers stated in said notice. A separate memorandum shall be filed for each case, and such memorandum shall contain the number and title of such case, and the attorneys of record of each of the parties thereto . . . The presiding judge shall, from time to time, make and cause to be posted as above, settings of the cases thus noted for’ trial. . . . All applications for continuance shall be made to the assignment division before assignment.

“Each case when assigned for trial shall be immediately tried or dismissed, unless for good cause arising or discovered after such assignment, it is continued by the judge of the division to which it is assigned, and shall thereupon be returned to the general docket.....

‘ ‘ Whenever the trial of a case shall result in a mistrial, said case shall immediately be returned to the general docket. This provision shall not, however, apply to any case in which an appeal is allowable on account of snch mistrial.

“Whenever any case is listed for trial, that fact shall be noted by the clerk on the general docket.”

“Rule 26. Trial Docket. Each division of the court of Kansas City shall have a trial docket in which shall' be entered the cases as they shall be assigned to that division for trial, and after the assignment of a cause for trial to a particular division said division shall thereafter have exclusive jurisdiction thereof, unless transferred to another division or returned to the general docket. ’ ’

Under the statutes the regular March term of the circuit court of Jiackson county expired on Saturday, the 10th day of May, 1913', and the regular May term of said court convened on Monday, the 12th day of the same month.

On May 5, 1913, while the March term of division No. 9 of said court was in session, and while respondent, as judge of said court, possessed full jurisdiction of a case wherein the relator, Edward J. Lamport, was plaintiff,' and the Aetna life Insurance Company was defendant, relator called the attention of respondent to the fact that there was probably not sufficient time before the end of said March term to try said cause, and requested respondent not to impanel a jury in said last named cause, for the reason that, before the trial could be completed, the end of the term would effect the discharge of such jury, thereby causing a mistrial. Respondent, as such judge, ignored relator’s suggestion, impaneled a jury and ordered the parties to proceed with the trial of the aforesaid cause, to which action the relator excepted.

The jury was impaneled and the trial of the aforesaid cause proceeded with, before respondent and said jury, until Friday, the 9th day of May, 1913, when the further trial of said cause, before the same jury, was continued to Monday the 12th day of May, 1913 (the last named date being the time designated by law for the regular May term of said court to convene). Saturday,'May 10, 1913, was consumed by respondent in hearing and disposing of motions in other cases pending in his court, and at the end of thát day he finally adjoürned said court to court in course. On May 12, 1913, the respondent convened the regular May term of said division No. 9 of the circuit court of Jackson county, whereupon relator moved the respondent to make' án order discharging the petit jury, which had theretofore been'impaneled and sworn in the case of Lamport v. Insurance Co., and to return the case to the general docket, for the reason that the expiration of the March term of said court had rendered the persons constituting the jury ineligible to further serve in that- capacity, thereby resulting in a mistrial of the case within, the purview of Rulé 22, hereinbefore set out. This, motion was by respondent overruled, and the parties, ordered to proceed with the trial of the cause before' the jury selected and sworn at the March term, to which order relator excepted.

The said cause of relator against the Aetna Life Insurance company was then proceeded with from day to day until May 17,1913, when a verdict was rendered in favor of defendant by nine of the jurors selected at said March term, 1913.

Upon the coming in of the aforesaid verdict the r*elator filed a motion praying the respondent to render .judgment in favor of relator, notwithstanding the verdiet of the jury, which last named motion was by respondent overruled, and relator excepted.

Belator, in a timely manner, also filed a motion for new trial, with affidavits in support thereof; also a motion in arrest of judgment, which motions for new trial and in arrest were continued until the September term, 1913, of respondent’s said court, and on the 17th day of September, 1913, were overruled, to which ruling relator excepted.

Belator did not voluntarily take part in the trial of his case against the Aetna Life Insurance Company after the end of the March term, 1913, but participated in the trial after that date under coercion of respondent and to avoid a dismissal of the case.

Belator alleges, generally, that he exhausted all means and methods known to him under the law before suing out the writ of mandamus from this court.

It further appears by supplemental return of respondent that since this action was begun in this court,. relator has filed in the circuit court, over which respondent presides, a motion to set aside its order overruling relator’s motion for new trial.

I. Belator contends (1) that as the jury which returned the verdict against him had been impaneled and sworn at the March term, 1913, such jury became functus officio when the March term ended, and was, therefore, wholly without power to return a valid verdict at the succeeding May term. (2) That the respondent, sitting as judge of said division No. 9, should have declared the failure of the jury to return a verdict during the March term a mistrial and have returned the cause to the general docket. (3') Belator further asserts that we should now compel respondent by mandamus to return said case to the general docket of the Jackson Circuit Court notwithstanding respondent has entered a final judgment, or, at least, what purports to be a final judgment, in said cause.

We hold that relator has misconceived his remedy. Mandamus often lies from this court to compel an inferior court to hear and determine a cause or matter in issue when the inferior court possesses jurisdiction to act in the premises but refuses to perform a plain legal duty. [State ex rel. Schonhoff v. O’Bryan, Judge, 102 Mo. 254; State ex rel. v. Gibson, 187 Mo. 536; State ex rel. v. Grimm, 220 Mo. 483; State ex rel. v. Broaddus, 234 Mo. 331.]

However, when a circuit court has exercised its entire jurisdiction by fully hearing a cause and rendering final judgment therein its errors committed during the trial must be corrected by appeal or writ of error. There is quite a well-settled rule of law in this State that the writ of mandamus is not available for the correction of errors committed by the circuit court in cases where such errors may be reviewed and corrected by appeal. [State ex rel. v. Lubke, 85 Mo. 338; State ex rel. v. Fort, 180 Mo. l. c. 109; State ex rel. v. Thurman, 232 Mo. 130, l. c. 164.]

Relator, however, insists that he cannot secure redress by appeal in this cause, for the reason that part of the trial was had at the March term, 1913, and the remainder at a succeeding term of the same year. This contention is untenable. Section 2029', Revised Statutes 1909, provides that the trial court may grant time for preparing, settling and filing exceptions. There was nothing to prevent the relator from securing from the trial court an order granting him sufficient-time to prepare and file such exceptions as he saved at the March term, 1913. Then, after the final judgment at the succeeding May term, he could have embraced all the exceptions saved at both terms in one bill of exceptions, and thereby have literally complied with the last clause of section 2029, Revised Statutes 1909, directing that all exceptions taken during the trial of' a cause before tbe same jury shall be embraced in one bill of exceptions.

Section 2028, Revised Statutes 1909, does not mean that a term bill of exceptions must be actually signed and filed, at the very term when the exceptions were saved. Section 2029, supra, modifies section 2028 so as to warrant the filing of a term bill of exceptions at a subsequent term if time be granted therefor by the court; and though the term bill be made a part of the final bill, it will be sufficient if filed within the time granted by thé court for filing such term bill. [Barber Asphalt Paving Co. v. Ullman, 137 Mo. 543, l. c. 564.] By what is here said we do not wish to be understood as holding that term bills of exceptions must be made a part of the final bill. It seems to be the practice of this court to consider separate bills of exceptions if each be settled and filed within the time prescribed by law or within the time allowed by the court. [Campbell v. Boyers, 241 Mo. l. c. 432.]

II. Since we have reached the conclusion that the alleged errors from which relator is seeking to secure relief by mandamus should be reviewed by appeal, it is not appropriate for us to express in this case any opinion regarding the action of the trial court in continuing the cause from the March term to the May term, and using the same jury in the trial of the case at each term. The point has been ably briefed by both parties, and, with the hope of ending the controversy, we are strongly tempted to pass upon the matter now, but should we do so what we might say would be only obiter and possess no binding force as a precedent. [Koerner v. St. Louis Car Co., 209 Mo. 141, l. c. 156; Lyons v. Surety Co., 243 Mo. l. c. 620.] The pleadings have been so framed in this cause as to show that certain exceptions were saved by relator in his action against the Aetna Life Insurance Company during the progress of that trial, and should we pass upon those exceptions in this original action it would encourage other litigants to apply to us for original writs to correct pure matters of error occurring during trials, and thereby further consume time which we should devote to the hearing of cases that have been appealed in an orderly manner. Litigants should not thus be given a preference one over the other in securing a hearing of their causes. "When the Constitution or law does not otherwise direct, every litigant should take his turn at the judicial mill.

Finding that our alternative writ in this cause was-improvidently issued, it will he quashed and the absolute writ prayed for by relator will he denied. It is-so ordered.

All concur.