author: BURGESS, J. GANTT, C. J.

text:
    THE STATE ex rel. SPRINGFIELD TRACTION COMPANY v. BROADDUS et al., Judges of Kansas City Court of Appeals.
    In Banc,
    November 27, 1907.
    1. COURT OF APPEALS: Erroneous Opinion: Correction by Mandamus. Where a Court of Appeals has rendered an opinion in a cause over which it had jurisdiction, namely, to the effect that no hill of exceptions had been filed in the trial court, whether that opinion he correct or not, it cannot he compelled hy the Supreme Court through its writ of mandamus to hear and decide the cause on its merits on the ground that it erroneously held that no bill of exceptions had been filed therein.
    2. -: -1 — : -: Bill of Exceptions: Record Showing Filing. A judgment was rendered against relator for $2,000 and relator appealed to the Court of Appeals, and within time allowed by the trial court presented its bill of exceptions to the trial judge, who approved the same, and on the same day the clerk indorsed thereon these words: “In obedience to the order of Honorable Argus Cox, Judge, in vacation, I file this bill of exceptions this 17th day of February, 1906. Luther Hyde, Clerk,” but no entry was made of record showing such filing, and on appeal the Court of Appeals held no bill was filed, since the filing was not “authenticated by some entry on the records of the court.” Thereupon appellant sued out mandamus in the Supreme Court to compel the Court of Appeals to consider the cause on its merits, its contention being that the court erred in holding that any record entry showing the filing of the hill in vacation, other than the clerk’s indorsement thereon, was necessary. Held, that the Court of Appeals had jurisdiction to render an erroneous decision as well as a correct one, and that the question is not whether its opinion was correct or erroneous, but as it had jurisdiction of the cause, and rendered an opinion therein, its ruling was a judicial act, and its decision is final, and the error in its opinion, if any, cannot be corrected by writ of mandamus.

      Held, by Gantt, J., dissenting, that (1) the ruling of the Court of Appeals was clearly wrong, and contrary to the prior decisions of the Supreme Court, and denies to relator a plain legal right; and (2) the Constitution having given the Supreme Court a superintending control over the Courts of Appeals, and provided that “the last previous rulings of the Supreme Court shall in all cases be controlling authority in said Courts of Appeals,” the writ of mandamus should go, in order that justice may not be denied relator, that there may be but one uniform practice in the appellate courts of this State, and that the Courts of Appeals should conform to' the practice of the Supreme Court.
    3. MANDAMUS: Errors. Mandamus cannot be used to correct errors in a judicial act of an inferior court.
    Mandamus.
    Peremptory writ denied.

      Skinker, Delaney S Delaney for relator.
    The Kansas City Court of Appeals errect in affirming the judgment; erred in refusing to consider the manifest and manifold errors committed by the trial court, and entirely overlooked the repeated rulings of the Supreme Court; and erred in holding that no bill of exceptions had been filed because there was no vacation entry showing such filing. The court entirely overlooked the fact that the bill of exceptions was filed within the time allowed by an order of court. The opinion of the Kansas City Court of Appeals recites the order of the circuit court giving appellant the right to file its bill of exceptions on or before March 1, 1906, and recites in said opinion that said bill of exceptions was filed within said time. The said court finds, “taking both abstracts into consideration, they show a complete history of the case.” Then by a singular oversight the said court assumed that appellant’s standing in the Court of Appeals depended entirely on the entry on the bill of exceptions made by the judge in vacation and by the endorsement of the clerk thereon. Sees. 526, 732, R. S. 1899; Carter v. Prior, 78 Mo. 222; Ferguson v. Thacker, 79 Mo. 511; Lafollette v. Thomson, 83 Mo. 199; Wilson v. Railroad, 167 Mo. 323; Ricketts v. Hart, 73 Mo. App. 647; Allen v. Ftmk, 85 Mo. App. 461; Mitchell v. Williams-, 79 Mo. App. 389; Ricketts v. Hart, 150 Mo. 64; Roush v. Clmningham, 163 Mo. 173,
    O. T. Hamlin and Hechow S PufaM for respondents.
    (1) This being a case in which the Kansas City Court of Appeals has exclusive appellate jurisdiction, and having judicially passed upon the entire record before them and passed upon the merits of the case, so far as in their judgment the same was before them,their action is final. State ex rel. v. Smith, 105 Mo. 6; State ex rel. v. St. Louis Court of Appeals, 87 Mo. 375; Dunklin County v. District Court, 23 Mo. 449; State ex rel. v. Ross, 118 Mo. 46; Smith v. Railroad, 143 Mo. 38. (2) This case is unlike the case of State ex rel. v. Smith, 172 Mo. 446, and the case of State ex rel. v. Philips, 97 Mo. 346. In these cases there was no final judgment. The appeal was dismissed. On the contrary, these cases support the position of respondents in this case. In the case of State ex rel. v. Philips, Judge Sherwood remarks, “Of course this line of remark is not intended to apply nor can it apply to cases like that of State ex rel. v. St. Louis Court of Appeals, 87 Mo. 374, where the Court of Appeals affirmed the judgment on1 the ground that the motion for judgment against a stockholder was not incorporated in the bill of exceptions; for there a final judgment was rendered in the usual course of judicial procedure, and however great errors were committed therein, they furnished no ground for mandamus. ’ ’ In the case at bar the court examined the entire record; passed upon the sufficiency of the record proper and rendered final judgment affirming the case. In such circumstances mandamus does not lie.
   BURGESS, J.

— This is an application for mandamus to require the respondents, Judges of the Kansas City Court of Appeals, to proceed with and hear, examine and determine upon its merits a cause recently pending in said court, wherein Mahala Cramer was plaintiff and the Spring-field Traction Company' was defendant.

The alternative writ is substantially as follows:

“Whereas, the Springfield Traction Company, by its petition, has represented to us, to-wit, that on the 10th day of August, 1905, it being the August term of the circuit court of Polk county, Missouri, there was pending in the circuit court of Polk county, Missouri, a certain cause in which one Mahala H. Cramer was plaintiff and the said Springfield Traction Company was defendant, and that on the said 10th day of August, 1905, a verdict therein was returned in favor of said Mahala H. Cramer, plaintiff, and against the said Springfield Traction Company; and that thereafter, at and during the said August term, 1905, of said Polk County . Circuit Court, and within four days after the return of said verdict, to-wit, on August 12, 1905, the said Springfield Traction Company filed its motion for a new trial therein, setting forth therein errors alleged to have been committed in the trial of said cause; and that on the same day, to-wit, August 12, 1905', and during the said August term, 1905, and within four days after the rendition of and return of the verdict therein, the said Springfield Traction Company filed its motion in arrest of judgment, assigning and setting forth in said motion alleged errors in the trial and alleged defects in the petition, and matters showing said judgment to be void as alleged and claimed by said defendant; that thereafter, to-wit, on September 28‘, 1905', it being the said August term, 1905, of said circuit court of Polk county, Missouri, the said motion for a new trial was by the said circuit court heard and was on said day overruled, to which ruling defendant objected and excepted at the time, and that on the same day, to-wit, September 28, 1905, and it being the August term, 1905, of said Polk County Circuit Court, the said mOr tion in arrest was by the said court heard and was on said date, September 28, 1905, overruled, to which ruling defendant objected and excepted at the time; that thereupon, on the same day, to-wit, September 28,1905, and during the said August term, 1905, of said Polk County Circuit Court, the said Springfield Traction Company filed its affidavit for appeal and that said appeal on said day was allowed by said circuit court of Polk county, Missouri, by its order duly entered of record and which record entry is as follows, to-wit: ‘Now on this day comes the defendant and files its affidavit for appeal and all and singular being seen, heard and fully understood, the said appeal is allowed and said defendant is granted an appeal to the Kansas City Court of Appeals, and it is further ordered that the defendant have until and including the first day of the next regular term of this court in which to file its exceptions.’ That on the same day, to-wit, September 28, 1905, it being the August term, 1905, of said circuit court of Polk county, Missouri,, the said Springfield Traction Company filed its bond for appeal and on said day, to-wit, September 28, 1905, the said bond was duly approved.
“And Whereas, the said Springfield Traction Company by its said petition has further represented to us that thereafter, to-wit, on the 27th day of November, 1905, it being the first day of the November term, 1905, of the said circuit court of Polk county, Missouri, and it being within the time allowed defendant the Springfield Traction Company within which to file its bill of exceptions, the said circuit court of Polk county, Missouri, for good cause shown did by its order of record extend the time for the filing of its said bill of exceptions until and including the first day of March, 1906, which order of record is in words as follows: ‘Now on this 27th day of November, 1905, the defendant in open court asks that the time be extended within which to file its bill of exceptions and all and singular being heard, it is by the court ordered that the time for filing said bill of exceptions be extended and that the defendant have on and including the 1st day of March, 1906, in which to file the same.’
“And Whereas, the said Springfield Traction Company, by its said petition, has further represented to us that thereafter, to-wit, on the 17th day of February, 1906, it, the said Springfield Traction Company, presented to Honorable Argus Cox, he being the judge of the said circuit court of Pollc county, Missouri, its bill of exceptions in said cause and the said judge having examined the same, did on said February 17, 1906, allow the same and did on said February 17,1906, sign the same and attach his seal thereto and by endorsement thereon on said day did direct the clerk of said circuit court of Polk county to file the same; that on said 17th day of February, 1906, the said Springfield Traction Company did present the said bill of exceptions so allowed, signed and sealed to the said clerk of said circuit court of Polk county at and in the office of said clerk and did file said bill of exceptions with said clerk and that on said date its said clerk made the following endorsement thereon: ‘In obedience to the order of Honorable Argus Cox, Judge, in vacation, file this bill of .exceptions this 17th day of February, 1906. Luther Hyde, Clerk. ’
“And Whereas, it is further represented to us by the said) Springfield Traction Company in its petition so filed with us that on the — day of March, 1906', the said Springfield Traction Company filed with and in the office of the clerk of the Kansas City Court of Appeals a certified copy of the judgment so rendered in the circuit court of Polk county, Missouri, and did on said date file with and in the office of the said clerk of the said Kansas City Court of Appeals a certified copy of the order made by the circuit court of Polk county, Missouri, allowing said appeal.
“And Whereas, the said Springfield Traction Company by its petition hath further represented to us as follows: That about the time of the granting of said bill of exceptions a stipulation was entered into between counsel for appellant and counsel for respondent
in said' action, as follows: It is hereby stipulated that any misreeitals in bill of exceptions in this case may be corrected by either party hereto before final submission in Court of Appeals; and any omission may be supplied by either party before said final submission, and any error of facts or files or the dates thereof or any misrecital of any error in or omission of evidence may be supplied by either party hereto before final submission;’ that said cause was originally set for the -- day of April, 1906, it being the April term, 1906, of the said Kansas City Court of Appeals; that in the month of February, 1906’, the counsel for said Springfield Traction Company, T. J. Delaney, requested of Hon. O. T. Hamlin, counsel for respondent Mahala H. Cramer, that said cause be continued by consent to the October term, 1906, of said Kansas City Court of Appeals, but that said request was refused. That thereupon said T. J. Delaney, in behalf of said Springfield Traction Company, prepared its abstract of the record and its brief and on or about the — day of March, 1906, as required by law, the appellant, by said T. J. Delaney, delivered to said Hon. O’. T. Hamlin a copy of the abstract of the record prepared by appellant and also delivered to said Hon. O. T. Hamlin a copy of appellant’s brief. That on the same day, after said abstract of the record and said brief had been so delivered to said Hon. O. T. Hamlin, the said Hon. O. T. Hamlin pleaded stress of business and requested a continuance of said cause which request was granted and by agreement said cause was continued to the October term, 1906, of said Kansas City Court of Appeals.
“And Whereas, it is further represented to us that on the — day of — 1906, and in compliance with the rules of said court, the said Springfield Traction Company filed with and in the office of the clerk of said Kansas City Court of Appeals copies of said abstract of the record and copies of the brief of appellant; and that said abstract of the record so filed set forth all that was necessary to an intelligent understanding and proper decision of the issues involved; and' also filed with and in the office of the clerk of said Kansas City Court of Appeals its brief in said cause. That on September 19, 1906, said Hon. O. T/ Hamlin served appellant with notice that respondent would move to affirm said judgment for the failure, as alleged, of the appellant to comply with section 813 of Revised Statutes of Missouri, 1890, and for failure to comply with rules of the said Kansas City Court of Appeals; that on or about September 22, 1906, the said respondent served appellant’s counsel with its brief in support of the motion to affirm said judgment which paper also contained the brief of respondent on the merits of the case; that thereupon appellant filed an ‘additional abstract of the record’ and its brief in opposition to said motion for affirmance; that on October 4,1906, said cause came on for hearing in the Kansas City Court of Appeals, it being the day that said cause was docketed for hearing and on said day the said cause was argued both on motion to affirm and on the merits and was on said day submitted for decision; and that thereafter on the — day of January, 1907, the said Kansas City Court of Appeals sustained respondent’s motion for affirmance on the grounds ‘that the bill of exceptions must be authenticated by some entry on the records of the court and that an entry on a bill of exceptions of its filing is no evidence of its authenticity.’
“Relator says that afterwards and within ten days after the rendition of said judgment, the said appellant filed with and in the office of said clerk of the said Kansas City Court of Appeals, its motion for a rehearing and to set aside the said judgment of said Kansas City Court of Appeals and for a hearing on the merits, for the reason that it affirmatively appears from the abstract of the record that the said circuit court of Polk county, Missouri, in term time, on November 27,1905, by its order of record, which record is set out in said abstract, granted the appellant leave to file said bill of exceptions on or before March 1, 1906; and that said bill of exceptions was within said time signed by the judge of said court and was within said time filed with the clerk in said court in vacation, and that no further record entry was required or could be made and that the endorsement of said clerk is sufficient. That said motion for rehearing and for a hearing on the merits was the 14th day of January, 1907, by the said Kansas'City Court of Appeals overruled.
“Now therefore, we being willing that full and speedy justice should be done in this behalf to it, The Springfield Traction Company, do command and enjoin that immediately on the receipt of this writ you, the said Honorable Judges of the Kansas City Court of Appeals, as a court, shall set aside your judgment heretofore rendered in said cause of Mahala H. Cramer v. The Springfield Traction Company and that you proceed to hear said cause and determine the same on its merits,” etc.

In obedience to the command of this court, respondents made return substantially as follows:

Now come the respondents and for return to the alternative writ, hereby deny each and every allegation in said writ contained except as the same may hereafter be specifically, admitted.

They admit that on the 10th day of August, 1905-, there was pending in the circuit court of Polk county, Missouri, a case wherein Mahala Cramer was plaintiff and the Springfield Traction Company was defendant; and they allege that said cause was brought by change of venue from the circuit court of Greene county, Missouri, to Polk county, upon the application of relator, the Springfield Traction Company. They admit that on said 10th day of August, 1905, after due trial, a verdict was returned by a jury duly impaneled in said cause, in favor of plaintiff, Mahala Cramer, and they, allege that said verdict was for the sum of two thousand dollars. Admit that on the 28th day of September, 1905, the Springfield Traction Company was granted an appeal to the Kansas City Court of Appeals. Admit that on the 19th day of October, 1905, the said Springfield Traction Company filed with and in the office of the clerk of the Kansas City Court of Appeals a duly certified copy of the judgment and order granting an appeal to the Kansas City Court of Appeals in said cause.

The respondents allege that by reason thereof the said Kansas City Court of Appeals became possessed of said cause and had and has exclusive appellate jurisdiction thereof.

Admit that at the April term, 1906-, of the said Kansas City Court of Appeals said cause . was by consent of parties continued to the October term, 1906, of said court.

Admit that counsel for the Springfield Traction Company, appellant in said cause, filed in said cause on October 1, 1906, what it calls an abstract of the record, a copy of which is hereto annexed, and made a part of this return, and marked “Exhibit A.”

Admit that the respondent in said cause, Mahala Cramer, served notice on T. J. Delaney that she would move for an affirmance of said judgment in the Kansas City Court of Appeals and that she did file said motion in said court.

Admit that on or about September 22, 1906, respondent in said cause served appellant’s counsel with its brief in support of the motion to affirm said judgment, and that thereupon appellant filed what is denominated an “additional abstract of the record,” a copy of which is hereto attached and made a part of this return and marked “Exhibit B.”

The respondents allege that this said so-called additional abstract was filed without leave of court, but that they considered the same. Respondents admit that on the 14th day of October, 1906, said cause came on for hearing and that the same was presented upon briefs by both sides and both sides made oral arguments, and the same was thereupon finally submitted for decision of the court, both upon the motion to affirm and on the merits.

The respondents allege that thereupon they examined the records and abstracts aforesaid and on due consideration found the facts and reached the conclusion of law embodied in the following written opinion which was duly filed, as the opinion of the court in' said cause:

“PER CURIAM: The appeal was taken in this cause on the 28th day of September, 1905. Time for filing bill of exceptions was extended until March 1, 1906. A certified copy of the judgment was filed with this court in due time for a hearing on the 10th day of March, 1906, it being the sixth day of the March term of court.
“Service of what purported to be an abstract of the case was accepted by respondent’s attorneys on the last-named date and term named, but by agreement of parties the case was continued. At some time after the appeal was taken, but at what time it does not appear, the parties entered into a certain agreement in writing, which was filed with the clerk on September 28, 1906, to the following effect: ‘It is hereby stipulated that any misrecital in bill of exceptions in this case may be corrected by either party hereto before final submission in the Court of Appeals, and any omission may be supplied by either party before said final submission, and any error of facts, or files, or dates thereof, or any misrecitals of an error in or omission of evidence may be supplied by either party hereto before final submission in this cause.’
“On September 24, 1906, the respondent filed a motion to dismiss the appeal. On the same day appellant served on the respondent’s attorney what purported to be an additional abstract of the record. Under the agreement mentioned, the appellant had the right to correct any error in its abstract, so as to make it comply with the record and the proceedings in the case and the evidence introduced at the trial, and with that object in view he has filed the paper marked ‘ Additional Abstract. ’
‘ ‘ The amended abstract filed contains the following in regard to the filing of the bill of exceptions: In obedience to the order of Hon. Argus Cox, judge, in vacation, filed this bill of exceptions the 17th day of February, 1906. Luther Hyde, Circuit Clerk.’
“Since the cause was submitted the appellant files an affidavit showing that there had been omitted from said entry the word ‘I’ after the word ‘file.’ We will treat the matter as it stands corrected.
“It is well-settled law in this State that a bill of exceptions, being a matter outside of the record proper, must be authenticated by some entry on the records of the court. An entry on a bill of exceptions of its filing is no evidence of its authenticity. ‘It has been uniformly ruled by this court that the record proper must, if in term time, show the filing of the bill of exceptions, and, if the time has been extended in term time, the record proper must show it and the minutes of the clerk in vacation must show the filing within the time allowed; that the recital in the bill cannot supply that defect, as in the very nature of the case the bill of exceptions is no part of the record until signed and filed by leave of court. ’ [Ricketts v. Hart, 150 Mo. 64. See, also, Roush v. Cunningham, 163 Mo. 173.]
“It seems to us that the filing of the bill of exceptions is a matter of record and that, as an entry on the bill is no part of the record, the endorsement by the clerk does not show that any hill of exceptions was ever filed.
• “There being no bill of exceptions, onr inquiry is limited to á consideration of the record proper. It is contended that the amended petition on which the case was tried is a radical departure from the original petition, and does not state a cause of action.
“The former is founded upon the same cause of action as the latter, stated somewhat differently as to details, but there is no material difference in the two. We think that each states a good cause of action.
Affirmed. ’ ’

Wherefore, these respondents allege that they have fully performed their duty in the premises; that they have passed upon the merits of the case so far as they can under the law and the rules of their said court, and have rendered final judgment by an affirmance of the judgment of the said circuit court of Polk county upon the record before them. Wherefore, they ask to be discharged with their costs.

Thereafter, relator filed the following motion:

“Comes relator, and notwithstanding the return filed herein, prays that the alternative writ be made peremptory, and that this honorable court make a rule directing and commanding the Honorable Judges of the Kansas City Court of Appeals to proceed with and hear, examine and determine the said cause of Mahala Cramer vs. The Springfield Traction Company. upon its merits, because:
“1st. On the facts pleaded in the return, the Honorable the Kansas ■ City Court of Appeals erred in sustaining the motion of respondent in said cause.
“2nd. On the facts pleaded in the return, the Honorable the Kansas City Court of Appeals erred in refusing to consider the bill of exceptions as the same appears in records filed in said cause and incorporated in said record, and erred in disposing of said canse on the petition and answer.
“3rd. On the facts pleaded in said return, the Honorable the Kansas City Court'of Appeals erred in holding that there was no bill of exceptions in said cause.
“4th. On the facts pleaded in the return, and from the exhibits filed therewith, it appears that the bill of exceptions was filed within the time allowed by the order of court duly entered of record.
“5th. In holding that ‘an entry on the bill is no part of the record,’ the Honorable the Kansas City Court of Appeals decided said cause as though the endorsement on the bill is the only authority for filing same, whereas the Honorable the said Court of Appeals in its opinion recites that the time for filing the bill of exceptions was extended until March 1, 1906, and the return and the exhibits filed therewith show said bill of exceptions was filed February 17th, 1906.
“Wherefore, notwithstanding said return, and said return having confessed the allegations of the alternative writ, relator prays that a peremptory writ issue.”

It is conceded that the Court of Appeals had jurisdiction of the subject-matter of the controversy and of the parties in the suit of Mahala Cramer against the Springfield Traction Company. The Court of Appeals did not refuse to consider such cause. On the contrary, it heard the same, and, in so doing, held that the bill of exceptions relied upon by the appellant in the cause, the Springfield Traction Company, could not be considered because there was m record entry of its filing in the case, and that the mere indorsement on the bill by the clerk of the circuit court, “In obedience to the order of Hon. Argus Cox, Judge, in vacation, filed this bill of exceptions this 17th day of February, 1906,” was not sufficient. Whether this ruling was right or wrong we are not concerned, for in any event it was as much a judicial question as any in the case, and the action of the court is not reviewable by this writ. This is not a case where the court had refused to act. In such case mandamus is the appropriate remedy to set the machinery of the court to which it is addressed in motion, but it will not direct the performance of any particular judicial act. The subordinate tribunal will be left free to give its best judgment. The scope and province of the writ is to prevent a failure of justice, from delay or refusal to act, when addressed to a court acting judicially. [State ex rel. Adamson v. Lafayette County Court, 41 Mo. 222; Trainer, etc., v. Porter, 45 Mo. 338.] “Nor will it lie to correct the errors of inferior tribunals by annulling what they have done erroneously.” [State ex rel. v. St. Louis Court of Appeals, 87 Mo. l. c. 376; Dunklin County v. District Court, 23 Mo. 453; 1 Den. 644; 20 Wend. 658; 10 Pick. 244.]

In Sublette v. Railroad, 198 Mo. l. c. 192, Judge Graves, speaking for the court, said: “The Courts of Appeals have as much right to construe statutes as has this court, if construction of such is demanded in the courts of decision of cases coming properly within their jurisdiction, and their construction is as final in such eases as is the construction of statutes by this court in cases here.”

The principles- which we here announce are very clearly set forth in the case of State ex rel. Kansas City v. Field, 107 Mo. 445, wherein Gantt, P. J., spealdng for this court, said: “It will be observed that Judge Field did not hold he had no jurisdiction of this proceeding, nor did lie decline to permit the officer to amend his return, if as a fact he had complied with the ordinance, nor did he refuse the city counsellor an alias notice. He simply held the return, as to those not found or served, insufficient to justify service by publication. He did not dismiss tbe proceeding, nor bas be refused to proceed witb tbe cause. If be is wrong in bis interpretation of tbe law, and tbe sufficiency of tbis return, it is at most only an error wbicb can be corrected by writ of error or on appeal. It cannot be tolerated that a party may invoke tbe extraordinary writ of mandamus every time tbe judge makes an error in bis opinion. It was never designed tbis writ should usurp tbe function of a writ of error or appeal. Were the writ granted, it would simply require tbe learned judge to proceed to exercise bis judicial discretion, and tbis be bas not declined to do. Had be dismissed tbe case and declined absolutely to act, then a different case would be presented, and tbe case of State ex rel. Harris v. Laughlin, 75 Mo. 358, and similar eases to wbicb we are cited, would be authority for requiring him to bear tbe case, and proceed, but here be bas only said there is an irregularity in tbe process. It is a judicial question, that be alone could decide in the first instance, whether bis court bad jurisdiction of tbe owners of tbe real estate who had not been served witb notices according to tbe ordinance. Instead of refusing or hesitating to perform bis duty, be promptly decided tbe return insufficient. It cannot be said be bas refused to exercise bis jurisdiction.”

Plaintiff, however, relies upon State ex rel. v. Philips, 97 Mo. 331; State ex rel. v. Smith, 172 Mo. 446; State ex rel. City of Stanberry v. Smith, 172 Mo. 618, and State ex rel. v. Gibson, 184 Mo. 507, as sustaining its contention that a peremptory mandamus should issue in tbis case.

Tbe case first cited was an original proceeding by mandamus in tbis court, by wbicb it was sought to compel tbe Kansas City Court of Appeals to reinstate a cause wbicb it bad refused to bear and determine, and bad stricken from its docket. Tbe ¡next two cases were of a similar character. The case last cited was an original proceeding in this conrt by mandamus to compel a circuit judge to sign a bill of exceptions. A peremptory writ of mandamus was awarded in each of these cases. But there is a very marked distinction to be drawn between those cases and the one at bar. In each of those cases the conrt refused to proceed with or to entertain jurisdiction of the cause, but dismissed it, while in the case at bar the Court of Appeals did entertain jurisdiction of the case in question and heard it, and rendered a written opinion therein affirming the judgment of the trial court. The dismissals were nothing more nor less than refusals to entertain jurisdiction of and hear the cases, and mandamus was clearly the proper remedy; but in this case the court pursued exactly the opposite course — heard the cause, and rendered judgment.

The case of State ex rel. v. Gibson, supra, has no bearing whatsoever upon this case.

The case at bar went to the Court of Appeals in due course of procedure, and the court took cognizance thereof. The first questions for the consideration of that court were those presented by the record, which involved the consideration of the bill of exceptions and its authenticity, and the judgment in that respect called for the deliberation of the court as much as did any other question involved in the case. It was a necessary step in the case, and the ruling of the court should not be interfered with.

Within the limits of its constitutional authority, the Court of Appeals has the same authority to hear and determine questions of law which the particular case before it involves as has any other court of this State over which it may have jurisdiction. If the Court of Appeals determines judicially, even though it may he erroneously, a legal proposition involved in a case over which it has jurisdiction, it is not for this court to review its ruling by mandamus. [State ex rel. Hyatt v. Smith, 105 Mo. 6.]

The peremptory writ is denied, and the proceeding dismissed.

All concur, except Gantt, G. J., who dissents and expresses his views in a separate opinion.

DISSENTING OPINION.

GANTT, C. J.

I respectfully dissent from the opinion of my brethren. By section 3 of article VI of the Constitution of Missouri adopted in 1875-, it is provided: “The Supreme Court shall have a general superintending control over all inferior courts. It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari and other original remedial writs, and to hear and determine the same.” By the 8th section of the amendment to the Constitution adopted November, 1884, it was specifically provided: “The Supreme Court shall have superintending control over the Courts of Appeals by mandamus, prohibition and certiorariBy section 6 of said amendment it is further ordained that “the last previous rulings of the Supreme Court on any question of law or equity shall in all cases be controlling authority in said Courts of Appeals.” The history of this amendment is so recent that its object is well known. Owing to the crowded docket of this court at that time, an effort was made to relieve it by the creation of these Courts of Appeals. In my opinion two main purposes were intended to be subserved by the amendment; one was to relieve the docket of this court and prevent delays in the administration of justice; the other was that there should be one uniform line of adjudications by keeping the Courts of Appeal in accord with each other and both of them in harmony with the decisions of this court. In State ex rel. v. Smith et al., Judges of the Kansas City Court of Appeals, 172 Mo. 446, and State ex rel. Stanberry v. Smith, 172 Mo. 618, this court by writs of mandamus required the Kansas City Court of Appeals to conform its practice as to the sufficiency of abstracts required by section 818, Revised Statutes 1899, by directing it to reinstate said appeals which it had dismissed. In State ex rel. v. Smith, 172 Mo. l. c. 459, Judge Brace voiced the unanimous judgment of this court, by saying: “The case in question is within the exclusive appellate jurisdiction of the Kansas City Court of Appeals. From its judicial determination thereof no appeal lies to this court, and the writ of mandamus cannot be made to perform the functions of an appeal. Nevertheless, the Constitution provides that this court ‘shall have superintending control over the Courts of Appeals by mandamus.’ [Sec. 8, Am. of 1884, 1 R. S. 1899, p. 94.] And while under the power conferred on this court by this Constitutional provision the jurisdiction of the Court of Appeals to hear and determine the case cannot be invaded, yet the provision does confer the power and afford the means by which this court may compel that court to exercise its jurisdiction. To the end that it might properly d'o so, the Court of Appeals, in pursuance of the statute authorizing it thereto, adopted and promulgated certain rules for the presentation of causes in that court for their hearing and determination. As we have seen, the relator, in compliance with the statute and these rules, thus presented its case to that court for its hearing and1 determination. But the Court of Appeals, owing to an erroneous construction of its rules, refused to hear and determine the cause thus presented, and dismissed the appeal.” Accordingly it was held this court by mandamus could and would require that court to reinstate the appeal and determine it. In this case, it appears the Court of Appeals refused to consider the bill of exceptions filed in the ease of Mahala Cramer v. The Springfield Traction Company, for the reason that the bill of exceptions filed by leave of the circuit court in vacation was not authenticated hy any record or minute of record, but was endorsed by the circuit clerk when filed by the appellant therein in strict conformity to the order and leave' of the court, made in pursuance of sections 728 and 732, Revised Statutes 1899, in the following words: “In obedience to the order of Honorable Argus Cox, Judge, in vacation, I file this bill of exceptions this 17th day of February, 1906. Luther Hyde, Clerk.”

In support of its refusal to consider this hill of exceptions, the Court of Appeals, in its opinion, said: “It is well-settled law in this State that a bill of exceptions being a matter outside of the record proper must be authenticated by some entry on the records of the court. An entry on a bill of exceptions of its filing is no evidence of its authenticity. ‘It has been uniformly ruled by this court that the record proper must, if in term time, show the filing of the bill of exceptions, and, if the time has been extended in term time, the record proper must show it, and the minutes of the clerk in vacation must show the filing within the time allowed; that the recital in the hill cannot supply the defect, as in the very nature of the case the bill of exceptions is no part of the record until signed and filed by leave of court. ’ [Ricketts v. Hart, 150 Mo. l. c. 68.] ” That our brethren of the Kansas City Court of Appeals have misconstrued and misapprehended the meaning of the words “and the minutes of the clerk in vacation must show the filing within the time allowed,” I take it we are all agreed. Our statutes make no provision for the clerk of the circuit and common pleas courts keeping vacation records except in cases where the statutes provide for orders of publication. By “the minutes of the clerk” was meant the noting of the filing of the hill of exceptions itself, and nothing more, and this has been and is the uniform ruling of this court. When, therefore, the appellant had his bill duly allowed and signed by Judge Cox and tendered it to the clerk within the time allowed and the clerk endorsed it filed and affixed his official signature thereto, it became a part of the record, and in my opinion, the Court of Appeals was bound to consider the bill of exceptions as a part of the record in that cause, and to deny appellant that right was to deny him a, plain legal right accorded to every appellant in this court, and a clear misapprehension of the last rulings of this court on that subject. I am unable to accept the distinction made by my brethren between the dismissal of appeals in the two cases cited from the 172nd volume of our reports because the abstracts were deemed insufficient and the ruling that the bill of exceptions in this case was not properly authenticated. The ruling in each case led to the same result, a denial of the consideration of the exceptions of the appellant. To the end, therefore, that there should be one uniform practice in the appellate courts of this State and that the Court of Appeals should conform to the practice of this court, I think the writ of mandamus should be made peremptory, and this I do with the utmost respect for my learned brethren of the Kansas City Court of Appeals.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    THE STATE ex rel. WAGNER et al. v. PATTERSON et al.
    In Banc,
    November 27, 1907.
    1. SHERIFF: Vacancy: Election. Both hy the Constitution and statutes' when a vacancy occurs in the office of sheriff more than nine months prior to the next general election, the county court must immediately call a special election1 to fill the vacancy. And the statutes providing for such special election, it is unnecessary to determine whether the constitutional provision is self-enforcing or not.
    2. STATUTE: Amendment by General Revision. If the words found in a revised bill were taken from the Constitution, then the revised hill did not repeal or amend a prior statute containing the same words and other additional provisions.
    3. -: -: Words at End. That section 8187 of the Revised Statutes of 1899 did not amend the Act of 1887 is indicated hy the words “(R. S. 1879, sec. 3893, amended)” placed at the end of the section hy the revision committee.
    4. SCOPE OF REVISED BILL: Omitted Sections of Prior Statute: Sheriff: Vacancy: Special Election. In 1887 the Legislature enacted a statute of five sections which provided (1) that whenever any vacancy shall happen in the office of sheriff nine months prior to the next general election “the county court shall immediately order that a special election he held to fill isuch vacancy,” (2) that “such election shall he held within thirty days after the vacancy occurs,” (3) that a special meeting of the court, if not in session, should he called by the presiding judge, to order said election, (4) that the county court should appoint some person to fill the vacancy until the special election, and (5) repealing all inconsistent acts. At that time Sec. 3893, R. S. 1879, providing how, “whenever, from any cause, the office of sheriff becomes vacant,” process could he served while said vacancy continued, was in force, and in 1889 a section (8187, R. S. 1889) was included in a revised hill which said that “whenever, from any cause, the office of sheriff shall become vacant, the same shall he filled hy the county court; if such vacancy happen more than nine months prior to the time of holding a general election, such county court shall immediately order a special election to fill the same, and the person hy it appointed shall hold until the person chosen at such election shall qualify, otherwise the person appointed shall hold until the next general election,” followed by the provisions of said section 3893, R. S. 1879, in reference to serving process while the vacancy continued. The law of 1889 concerning the force of revised statutes provided that “all acts of a general nature, revised and amended and reenacted at the present session, shall he taken and construed as repealing all prior laws relating to the same subject.” Held, first, that the revised hill of 1899 “revised, amended and reenacted” only entire acts, and not parts of acts; second, the omission in section 8187 of the revised hill of all reference to sections two and three of the Act of 1887 is significant as indicating the purpose of the Legislature, not to revise that act, hut Sec. 3893, R. S'. 1879; third, sections two and three of the Act of 1887, providing in express words that the county court should order a special election and when it should he held, were not repealed or revised or amended hy Sec. 8187, R. S. 1889, and are still in force; and, fourth, even if Sec. 8187 was meant to he and was a revision of the Act of 1887, which is not conceded, then it and the act were in pari materia, and Sec. 8187 did not include and repeal hy implication sections two and three of the Act of 1887 b'y reenacting sections one and four thereof.
    5. -: Omitted Sections: Inconsistent. The omissions of certain sections of an existing law from a revised hill does not repeal those sections, if they and the revised hill are not inconsistent or repugnant. To he repealed hy implication the revision must include the whole subject of the prior enactment.
    6. SPECIAL ELECTION: Expiration of Prescribed Time. Where the statute directs the county court to call a special election to fill a vacancy in the office of sheriff within thirty days after the vacancy occurs, and the court has either neglected or refused to call it until the thirty days have expired, it cannot defeat mandamus hy showing that the time has expired, hut the Supreme Court will compel it to call an election within a designated time.
    7. JURISDICTION: Loss of by Inferior Court: Power of Supreme Court. The power of superintendency over all inferior courts given the Supreme Court hy the Constitution, and the power to issue its writs of mandamus, certiorari and other original writs, were expressly given in order that it may compel an inferior court to exercise a jurisdiction which it is required hy law to exercise hut which it has lost because of neglect or refusal to exercise it within a prescribed time.

      8. SHERIFF: Vacancy: Special Election: Provisions. The act of 1887 and the general election laws, both of which are in force, furnish a complete scheme for the holding of a special election to fill a vacancy in the office of sheriff.
    Mandamus.
    Peremptory writ awarded.

      J. G. L. Harvey, Frank P. Walsh, James A. Reed, Sam B. Strother, W. D. Jameson and Virgil Conk-ling for relators.
    (1) Section 8187, Revised Statutes 1889, does not repeal the Act of 1887. It was not repealed by implication by the revision of 1889'. State ex rel. v. Spencer, 164. Mo. 48. Repeals by implication are not favored. Manlier v. Faulhaber, 94 Mo. 430; State ex rel. v. Mar con County Court, 41 Mo. 453; State ex rel. v. Slover, 134 Mo. 10. A later statute will not repeal a prior one unless there is such repugnancy between them that the two cannot stand together or be consistently reconciled. Glasgow v. Lindell, 50 Mo. 60; Railroad v. Cass County, 53 Mo. 17; State ex rel. v. Dolan, 93' Mo. 467; Kansas City v. Smart, 128 Mo. 272; State ex rel. v. Walbridge, 119 Mo. 383; State ex rel. v. Wofford, 121 Mo. 61; State ex rel. v. Stratton, 136 Mo. 423. Applying these prin-, ciples to the case at bar, it is apparent that every requirement of the new sections of the revision of 1899 can he fully complied with and that the ten days’ notice, required now and before these new sections of the law were enacted can be given. So that there is no repugnancy or conflict between the old and the new provisions of the law. State ex rel. v. D'raper, 47 Mo. 29; Manlier v. Faulhaber, 94 Mo. 430; State ex rel. v. Slover, 134 Mo. 10: (2) Section 8187, Revised Statutes 1889 (10048, 1899), independent of other legislation, provides for a special election to fill a vacancy in the office of sheriff.' 26 Am. and Eng. Ency. Law (2 Ed.), 613; 10 lb., 691; Wells v. Taylor, 5 Mont, 202; People v. Dutcher, 56 111. 147; Rodwell v. Rowland, 137 N. C. 617; State ex rel. v. Burbridge, 24 Fla. 112; McCrary on Elections (4 Ed.), secs. 86,196.

      Chas. W. G&rmcm and Clyde Taylor for respondents.
    (1) The law of 1887 regulating special election has been repealed by the revision of 1889'. Sec. 6606, R. S. 1889; State ex rel. v. Wardell, 153 Mo. 325. (2) If such law of 1887 is still in force, the special election cannot be ordered, for the reason that the time provided by that law, within which such election shall be held, has elapsed. Hess v. Washoe, 6 Nev. 104; Boone v. State, 10 Tex. App. 418; 6 Am. and Eng. Ency. Law, 794; State ex rel. v. Jenkins, 43 M:o. 261; State ex rel. v. Ruark, 34 Mo. App. 325; State v. Webb, 49 Mo. App. 407; In re Wooldridge, 30 Mo. App. 612; State ex rel. v. Bowerman, 40: Mo. App: 576; State ex inf. v. Dabbs, 182 Mo. 367. (3) The general election laws do not put in force thé non-self-enforcing constitutional provision, for the reason that: 1st. Such general election laws do not of their own force apply to a special election. Arts. 1 and 2, chap. 102, R. S. 1899; Broom’s Legal Maxims (7 Ed.), p: 439. 2nd. Even though the general election laws apply, they do not provide sufficient machinery for the holding of this special election. Notice, legally authorized and regulated, is essential to the machinery regulating a special election. No notice for this special election is provided for, either by analogy from the general election laws or otherwise. McPike v. Penn, 51 Mo. 64; State v. Railroad, 75 Mo. 526; State ex rel. v. Martin, 83 Mo. App: 58; State ex rel. v. Tucker, 32 Mo-. App. 627; Bean v. Barton Co. Ct., 33 Mo. App. 642.
   WOODSON, J.

This is an original proceeding, instituted in this court on October 22, 1907, by the relators against the respondents, praying for the issuance of an alternative writ of mandamus. The writ was duly issued and made returnable on the 28th day of the same month.

The alternative writ alleged, in substance, that Charles P. Baldwin, the sheriff of Jackson county, Missouri, died on September 23, 1907, thereby leaving a vacancy in that office; that, under the law's of this state, it thereupon became-the duty of respondents, as judges of the county court of that county, to fill said vacancy temporarily by appointing a successor to said office, and to immediately order a special election to elect some one to fill the vacancy until the next general election; that respondents filled the vacancy by temporary appointment, but failed and refused to order the special election.

Upon the return day respondents filed their return, setting out at much length various reasons why they failed and refused to call the election, which are unnecessary to he repeated in this statement; but the . substance of the return was that there is no law in this State providing for the holding of the said special election, and that they had been enjoined by the circuit court of Jackson county from ordering the same.

To this return there was a demurrer filed by re- . labors.

For the purpose of a speedy hearing in this court, it was stated, in open court, that while the circuit court of Jackson county had orally announced its decree enjoining the respondents from ordering the election, yet the decree was withheld and not spread of record for the express purpose of permitting this court to'pass upon the legal propositions in the case, untrammeled by the decree of injunction. Under this admission we feel at liberty to proceed with the case.

So, the sole question presented to this court for determination is one of law, and that is, does the law of this State provide for the legal machinery for holding a special election to fill the vacancy in the sheriff’s office? In order to correctly determine that proposition, it calls for a review and the interpretation of the constitutional and- statutory provisions of the State bearing upon that subject.

The Constitution of 1820 of this State, article 4, section 24', provided that vacancies in the office of sheriff should be filled by appointment by the Governor, and that the appointee should continue in office until his successor should be duly qualified.

The Constitution of 1865, article 5, section 23, changed the manner of filling vacancies in the office of sheriff by providing as follows:

“Whenever a vacancy shall happen in the office of sheriff or coroner, the same shall be filled by the county court. If such vacancy happen in the office of sheriff more than nine months prior to the time of holding a general election, such county court shall immediately order a special election to fill the same; and the person by it appointed’ shall hold office until the person chosen at such election shall be duly qualified; otherwise the person appointed by such county court shall hold office until the person chosen at such general election shall be duly qualified. ... ”

Article 9, section 11, of the Constitution of 1875-, is a verbatim copy of the above section from the Constitution of 1865.

It will serve to throw some light upon the legal proposition involved herein to give a brief history of the legislation upon the question under the constitutional provisions before mentioned.

The first statute enacted thereunder was section 15, chapter 25, page 157, General Statutes 1865, and was as follows:

“Whenever, from any cause, the office of sheriff becomes vacant, while such vacancy continues, any writ or process, directed to the said sheriff, and in his hands at the time such vacancy occurs, remaining unexecuted, and any writ or process issued after such vacancy, may he served by any person selected by the plaintiff, his agent or attorney, at the risk of such plaintiff; and the clerk of any court out of which such writ or process shall issue, shall indorse on such writ or process the authority to such person to execute and return the same, and shall state on such indorsement that the authority thus given is ‘at the request and risk of the plaintiff;’ and the person so named in said writ or process may proceed to execute and return said process, as sheriffs are, by the law, required to do.”

It will be observed that this statute made no provision for filling vacancies in the office of sheriff, but provided simply for the service of process by private persons during such vacancy.

The same section was carried bodily into Wagner’s Statutes of 1872, and is section 15 of chapter 126 thereof.

The same statute was again carried forward into the revision of 1879, and is section 3898.

The first specific legislation upon the subject of filling vacancies in the office of sheriff was passed in 1887, and is found- in the Laws of 1887, page 281, and is as follows:

“sheriffs: vacancy, how filled.
“An act to provide for the election or appointment of sheriff in any county, whenever any vacancy may occur nine months prior to the holding of a general election.
“Be it enacted by the General Assembly of the State of Missouri, as follows:
“Section 1. That whenever any vacancy shall happen in the office of sheriff in any county in this-State nine months prior to the time of holding a general election in such county, the county court thereof shall immediately order that a special election he held to fill such vacancy.
“Section 2. Snch election shall he held within thirty days after the vacancy occurs, and the county court shall cause notice of the same to he published in some newspaper published within the county, and if there should be no newspaper published in said county, shall then give notice, by ten. written handbills, posted up in ten of the most public places in the county, for twenty days prior to the day of holding such election.
“See. 3. Upon the occurrence of such vacancy, it shall be the duty of the'presiding justice of the county court, if such court be not then.in session, to call a special term thereof, and cause said election to be held in pursuance of the provisions of this act, and the election laws regulating general elections in this State.
“Sec. 4. The county court shall have power to fill such vacancy by appointment, and the person appointed shall hold office until the person chosen at a special election, as herein provided, shall be duly elected and qualified.
“Sec. 5. All acts and parts of acts inconsistent herewith are hereby repealed.”

It is unnecessary for a proper determination of this cause to pass upon the question as to whether or not the constitutional provision mentioned is self-enforcing or not, because the first section of the act of 1887 gives legislative command to the constitutional requirements. Both the constitutional provision of 1875, before mentioned, and the act of 1887, in express terms, provide that whenever any vacancy shall occur in the office of sheriff nine months before the time for holding the general election, the county court shall immediately order a special election to be held to fill such vacancy. The act then requires that the election shall he held within thirty days, and provides for the time and manner of giving notice of the intended election, and says that it shall be held according to the provisions of that act and the general laws then in force governing general elections of the State, and finally provides for filling the vacancy in the office until the person chosen at the special election is elected and qualified.

Section 3893, Revised Statutes 1879, before mentioned, was amended and revised, and is now section 8187, Revised Statutes 1889, and reads as follows:

“Sec. 8187. Vacancy in Office — How Filled— Private Person May Execute Process, When.— Whenever, from any cause, the office of sheriff becomes vacant, the same shall be filled by the county court; if such vacancy happen more than nine months prior to the time of holding a general election, such county court shall immediately order a special election to fill the same, and the person by it appointed shall hold said office until the person chosen at such election shall be duly qualified, otherwise the person appointed by such county court shall hold office until the person chosen at such general election shall be duly qualified; but while such vacancy continues, any writ or process directed to the said sheriff and in his hands at the time such vacancy occurs, remaining unexecuted, and any writ or process issued after such vacancy, may be served by any person selected by the plaintiff, his agent or attorney, at the risk of such plaintiff; and the clerk of any court out of which such writ or process shall issue shall indorse on such writ or process the authority to such person to execute and return the same, and shall state on such indorsement that the authority thus given is ‘at the request and risk of the plaintiff;’ and the person so named in said writ or process may proceed to execute and return said process, as sheriffs are by the law required to do. (R. S. 1879, see. 3893, amended.)”

As we proceed it should be borne in mind that this section in the language of the Constitution commands that in case of any vacancy in the office of sheriff, the county court shall fill the same, and then provides that if such vacancy in said office occurs more than nine months prior to the time of holding a general election, such court shall immediately order a special election to fill the same, and that the person appointed shall hold office until his successor shall be elected' and qualified.

It will be noticed' that section 8187, above quoted, says, in the language of the constitutional provision, that the county court shall immediately order a special election, but entirely ignores the requirements of the Act of 1887, to the effect that thirty days notice should be given of the special election, and that the election should be held according to the Act of 1887 and the laws governing geaieral elections.

. The revision of 1889, section 6606, reads as follows:

“All acts of a general nature, revised and amended and re-enacted at the present session of the General Assembly, as soon as such acts shall take effect, shall be taken and construed as repealing all prior laws relating to the same subject.”

Section 8187, before mentioned, was brought forward without change into the revision of 1899', and is section 10,018.

"We have thus given a brief history of all the constitutional provisions and legislative enactments regarding the filling of vacancies in the office of sheriff. It will be seen from this history that the importance of this subject was so great that the people of the State in 1865, and then again in 1875, incorporated into the Constitution the section before quoted regarding such vacancies; but for some unexplained reasons each and every legislature from 1865 down to 1885 refused or neglected to enact any law putting into force that constitutional provision or providing any legal machinery by which a special election could be held thereunder. In 1887, however, the Legislature finally harkened unto the voice of the people, who had been calling unto it for twenty-two long years in the most solemn and unmistakable terms, to enact proper laws to carry into effect the mandate of their Constitution; and, in pursuance to that command, it passed the Act of 1887. Counsel for relators contend that said act is still in full force and effect, except in so far as sections one and four thereof are amended by section 8187, Revised Statutes 1889, which is the same as section 10048, Revised Statutes 1899. "While upon the other hand, the respondents contend that the entire Act of 1887 is repealed in express terms by section - 6606, before mentioned. The basis for this last contention is, that the Legislature amended sections one and four of the Act of 1887 and for that reason the entire act comes within the meaning of said section 6606, which is as follows:

“All acts of a general nature, revised cmd amended and re-enacted at the present session of the General Assembly, as soon as such acts shall take effect, shall be taken and construed as repealing all prior laws relating to the same subject.”

In this connection it should be borne in mind that there is nothing whatever to indicate that section 8187, Revised' Statutes 1889, was a revision of the Act of 1887, except that it contains the language of sections one and four thereof, which is in the same language as the constitutional provision of 1875-, before mentioned, but from which of the two it was taken there is no means of ascertaining. If taken from the Constitution, then the Act of 1887 is not repealed either in express terms nor by implication; but as counsel for relators in oral argument seemed to concede that said section 8187 was an amendment of the Act of 1887, we will proceed to consider the case upon that assumption ; yet we are by no means satisfied that counsel for relators are correct in that concession, for the reason, not only that it fails to mention the Act of 1887, but, also, because it is stated at the end of the section that said section 3893 was amended in the following words: “ (R. S. 1879, sec. 3893, amended)” which would exclude the idea that the Act of 1887 was amended, which was not passed until eight years after section 3893 was enacted. If the Act of 1887 was amended, it looks as though the reference which was made at the time by the revision committee would have been to that act and not to said section.

Counsel for respondents concede that the Act of 1887 is not repealed by implication, and in that concession we concur, as hereinafter stated; but they base their contention upon a repeal of the act in express terms.

Now, let us analyze section 6606, and ascertain its real meaning. To what act does it refer? “All acts of a general nature, revised, and amended anid re-enacted at the present session,” etc., shall be repealed. Was the Act of 1887 revised and amended and re-enacted? It should be noticed that the section does not provide that all acts and parts of acts, which are the general and usual words employed when the entire act is intended to be repealed, but uses the word acts, which clearly means the whole or entire act, and not mere parts of an act.

Again, was the entire act revised and amended and re-enacted? A glance at the Act of 1887 and to section 10,048, Revised Statutes 1890) will show that it only amends sections one and four thereof, and in no manner mentions sections two and three of the act, which exclusively provide for the manner and means of holding the special election to fill the vacancy.

And if it had been the purpose and intention of the Legislature to include the entire Act of 1887 in section 6606, and not simply sections one and four thereof, then why did the Legislature in the very same session revise and amend and re-enact those two sections which expressly command the county court, when the vacancy occurs nine months before the general election, to “immediately order a special election to fill the same ? ”

What would be the sense or object of the Legislature, in one breath, to command the county court to immediately order a special election to fill the vacancy, and in the very next breath repeal the only law on the statute books under which it was possible to hold the election? To place such a construction upon section 6606 would be convicting the Legislature of doing a vain and foolish thing. It defeats the very object and purpose it had in amending sections one and four of the act.

This court has held that where even the language of a statute leads to a manifest contradiction of the apparent purpose of the enactment, a construction may be put upon it which modifies the literal meaning of the words. [Cole v. Skrainka, 105 Mo. 303.]

The case of Sales v. Barber Asphalt Co., 166 Mo. 671, involved the construction of the following statutes and acts: Section. 5537, Revised Statutes 1899, relating to Cities of the Second Class, provides that, “In all such cities there shall be a city clerk, city engineer, city assessor, city counselor and city comptroller, who shall be appointed by the mayor, . . . and who shall perform such duties as may be prescribed by this article or any ordinance of the city.” This section has been in force ever since 1889, and was repealed by an act of 1901 (Laws 1901, p. 60), which in lieu thereof enacted' the following section, and gave it the same number as the repealed section, to-wit: “In all such cities there shall be a city clerk, city assessor and city counselor, who shall be appointed by the mayor, . . . and who shall perform such duties as may be prescribed by this article or any ordinance of the city.”

The principal difference between the two sections is in the latter the words “city engineer” are omitted therefrom.

The same act of 1901 repealed section 5538 of the same chapter of Revised Statutes 1899, and enacted as a substitute a section of like number. That relates to and creates the offices of city attorney, judge of police court, city auditor, city treasurer and city comptroller; and concludes with the following words: “There shall also be such other officers, servants and agents of the corporation as may be provided by ordinance, who shall perform such duties as may be prescribed by ordinance.”

The Act of 1901 also repealed section 5548 of the same chapter of Revised Statutes 1899', and enacted a new section in lieu thereof which relates to the duties of the comptroller, and is a duplicate of the repealed section. The foregoing were all of the sections of Revised Statutes 1899' as related to cities of the second class which were repealed by the Act of 1901, but it did not mention section 5541, Revised Statutes 1899, which was in the same chapter with the other sections. That section was as follows:

“Section 5541. city engineer.. The city engineer shall superintend the construction of all public works ordered by the common council; shall make out plans, specifications and estimates thereof, and do the surveying and engineering ordered by the city, and perform such other duties as may be prescribed by ordinance. ’ ’

Prom this brief statement of the legislation, it will be seen that the office of city engineer was repealed by the Act of 1901, but left untouched the duties he was to perform; but by another act of 1901 (Laws 1901, p. 75, sec. 5), the Legislature confers upon the board' of public works, which was created by that act, the authority to appoint a city engineer. The point was made that the board had no such power, because the office of city engineer had1 been repealed by the previous act in express terms, and that said section 5541, which prescribed his powers and duties, was repealed by necessary implication, and was so held by this court in State ex inf. v. Rackliffe, 164 Mo. 453. But when the same question again came before this court in the case of Sales v. Barber Asphalt Paving Co., 166 Mo. 671, the former opinion was reversed in so far as it related to said section 5541, and it was held that said section was not repealed by the Act of 1901, but that it was still in full force and'effect, notwithstanding the office of city engineer had been repealed. And in order to reach that conclusion this court held that, by omitting to repeal section 5541, which prescribed the powers and duties of the engineer, taken in connection with the act of 1901, and construed together in pari materia, it was not in fact the intention of the Legislature to even abolish the office of city engineer, but simply change the appointing power from the mayor to that of the board of public works.

And in reaching that conclusion Sherwood, J., said: “Now, if there is anything well settled in statutory construction it is this, that where a repealing statute expressly repeals certain sections of a statute by numbers, or a specified portion of another act, or even repeals one clause of a certain section, it follows that in the judgment of the Legislature no further repeal was necessary or intended. [Sutherland on Stat. Construction, sec. 327; State v. Morrow, 20 Mo. l. c. 141.] If the Legislature had intended to have abolished the office of city engineer altogether, they surely would not, while and when repealing other and adjacent sections on the same and the next preceding pages, have omitted to repeal by number section 5541 which prescribed the duties of such officer. And we may summon further aids and further rules of statutory construction in following after the meaning of the Legislature in the present case. Thus the rule m pari materia is applicable here. ‘All consistent statutes relating to the same subject, and hence briefly called statutes in pari materia, are treated prospectively and construed together as though they constituted one act. This is true where the acts relating to the same subject were passed at different dates, separated by long or short intervals, at the same session or on the same day.’ [Sutherland, Stat. Construction, sec. 283.] And ‘A statute must be construed with reference to the system of which it forms a part. And statutes on cognate subjects may be referred to, though not strictly in pari materia [Id., sec. 284.]”

In the RacMiffe case the very statute creating the office of city engineer was named and numbered and repealed in express terms, yet when the whole act of 1901, taken together with the chapter relating to cities of the second class, and both construed in pari materia,can it be doubted that the conclusions reached by this court in that case were correct? We think not. Then a fortiori it can be argued that section 6606, Revised Statutes 1889, did not include and repeal by implication sections two and three of the Act of 1887 by re-enacting sections one and four thereof, which require the election to be held, while the two former prescribe the mode and manner of holding it. Such a construction gives full force and effect to the entire act, while the contention of the respondents would nullify the entire act, including the two sections which were re-enacted. The Legislature never intended to do such a vain and useless thing. And especially is that true when we consider the fact that the Legislature had in mind and were writing into the very statute they were enacting the constitutional command that such an election “shall he held.”

The language of section 6606 is no broader nor more comprehensive in its scope than the rule of construction many times enunciated by this court to govern in the construction of an act where the whole subject-matter of a previous law is covered by a later act.

That rule is, a statute is impliedly repealed by a subsequent one revising the whole subject-matter of the first, and intending to substitute the latter for the former. [State to use v. Hickman, 84 Mo. l. c. 79; State v. Roller, 77 Mo. l. c. 129; Smith v. State, 14 Mo. 152; State v. Summers, 142 Mo. 586, l. c. 595; Meriwether v. Love, 167 Mo. l. c. 521.]

But who ever before heard that the amendment or repeal of one or more sections of a statute repealed the entire chapter upon the subject-matter, and especially where the principal amendment consists of a reenactment of the sections amended, and not their repeal?

There is nothing inconsistent in the two acts, and as was said by this court in the case of State ex rel. Folk v. Spencer, 164 Mo. l. c. 54: “If two statutes can be read together without contradiction or repugnancy or absurdity or unreasonableness, they should be read together and effect given to1 both; and a later will not repeal a prior one unless there is such repugnancy between them that the two cannot stand together or be consistently reconciled.”

The rule just announced is the same one this court applies to repeals and amendments by general revision bills, and cite the same class of authorities in support thereof. [Yall v. Gillham, 187 Mo. l. c. 405; Kern v. Legion of Honor, 167 Mo. 471.]

Bnt if is contended by learned counsel for respondents that the rule governing repeals by implication has no application to section 6606, and that it repeals, if at all, the Act of 1887, by express terms. In answer to that contention, it may be stated that in one sense that is true, but in another it is not true. In the sense in which respondents’ counsel- treats the matter, the act is repealed, if at all, in express terms; that is, if section 6606, Revised Statutes 1889, refers to and includes all the Act of 1887, including the sections not mentioned, then it is repealed by express terms; but if it does not include sections two and three of the Act of 1887, in the sense in which we have indicated, then it does not repeal. the act at all.

We are, therefore, of the opinion that those sections were not repealed but are in full force and effect.

II. Respondents next insist that even though the Act of 1887 is unrepealed' and still in full force and effect, yet the special election required by law to be held cannot be ordered, for the reason the time within which the act prescribed that it should be held has expired.

In support of that contention counsel cite us to cases from this and other states, where the county court voluntarily or through mistake ordered the election to be held on a day that was either short of the time prescribed by the statute or in excess of that time. Among which are the following: In re Wooldridge, 30 Mo. App. 612; State ex rel. v. Bowerman, 40 Mo. App. 576; State ex inf. v. Dabbs, 182 Mo. l. c. 367; State v. Webb, 49 Mo. App. 407; State ex rel. v. Ruark, 34 Mo. App. 325; State ex rel. v. Jenkins, 43 Mo. 261; 6 Am. & Eng. Ency. Law, 794; Boone v. State, 10 Tex. App. 418; State ex rel. Hess v. Commrs., 6 Nev. 104.

In each of those cases the election was held .in pursuance to the order and notice given, which was either too short of the time prescribed by the statute or was not held within the proper time. Those cases were clearly decided correctly, because the courts were acting outside and beyond their respective jurisdictions, and consequently their orders were null and void. This is true for the reason that a court of limited jurisdiction, and inferior courts not proceeding according to the course of the common law, are confined strictly to the authority given; and the records of such courts must show the existence of all the. facts necessary to give jurisdiction. [State v. Metzger, 26 Mo. 65; Sturgeon v. Hampton, 88 Mo. 203.]

The same is true where courts of general jurisdiction are exercising special powers conferred by statute, and the manner of procedure is specifically provided for. [Gray v. Railroad, 81 Mo. 126.] And upon that principle the circuit court has no power or jurisdiction to make an order after the expiration of the time within which the statute commands it to be made. According to this rule a circuit court has no power to sign, seal or order filed a bill of exceptions in a cause after the expiration of the time within which the statute says those things must be done. [Cartwright v. Liberty Telephone Co., 205 Mo. 126.]

While that is the well-settled law of this State, yet it by no means follows therefrom that this court does not possess the power to compel such courts to perform such duties where they refuse or neglect to do so, even after the expiration of that time. Section 3 of article 6 of the Constitution provides that, “The Supreme Court shall have a general superintending control over all inferior courts. It shall have power to issue writs of mmdamus . . . certiorari and other original writs, and to hear and determine the same.” The very object and purpose of conferring those powers upon this court was to compel such courts to act when they refused, and to keep them within their respective jurisdictions, where an appeal or writ of error does not lie.

In the ease of State ex rel. v. Gibson, 187 Mo. 536, this court, by mandamus, required defendant therein to sign a bill of exceptions in a cause after the expiration of the time when he should have done so under the statute. There are many other cases in the State to the same effect.

So it is thus seen that, because the court whose duty it was in the first instance to make the order, has lost the power and jurisdiction to do so, is no reason why this court may not require it to proceed and make the order at a later date than that fixed by the statute. Otherwise, it would be within the power of such courts to place at defiance the laws of the State by simply waiting until the expiration of the time within which they had the power and jurisdiction to act in the premises.

III. The next contention of respondents is that the general election laws do not apply to special elections to be held to fill vacancies in the office of sheriff.

These laws are found in articles 1 and 2, chapter 102, Revised Statutes 1890'. These two articles provide for a complete scheme for holding general elections over the State, including Jackson county, and if we read into them the Act of 1887, which provides that such special election shall be held in pursuance of the provisions of that act and the general election laws of the State, then we have a complete scheme for holding the special election mentioned.

There was no question but what that was true prior to the revision of 1889’, which amended the Act of 1887, and if we are correct in our views that the Act of 1887, as amended by the Act of 1889', is still in force, then by parity of reasoning the laws governing general elections, as found in said articles one and two, taken in connection with, tlie Act of 1887, furnish the same complete scheme for holding special elections at the present time — this, we presume, will not he questioned.

IY. During the oral argument of the cause some question was raised as to whether or not the general primary election laws enacted in 1907 (Laws 1907, pp. 263 to 270) would apply to this election, if ordered.

In reply to that suggestion, we will state that section one of that act expressly exempts from its operation all special elections to he held to fill vacancies in office, which, of course, includes those held to fill vacancies in the office of sheriff.

We are, therefore, of the opinion that the peremptory writ should he gwarded, and it is so ordered.

All concur.