In Re of Shelley for Blind Pension v. Missouri Commission for the Blind , 309 Mo. 612 ( 1925 )

ON MOTION FOR REHEARING. Respondent in her motion for rehearing makes the point that this is purely an ex parte proceeding; that the Commissioners for the Blind are not parties to it, had no interest in the result of the judgment in the circuit court, and therefore they had no right to appeal.

It is further claimed in the motion that this court has no jurisdiction of an appeal of this case in the absence of the constitutional question properly raised, because the Commissioners for the Blind not being parties, no State officer is a party.

These suggestions were not presented in the briefs, nor in the oral argument, and for that reason they were not considered in the opinion. Respondent points to her motion to dismiss the appeal for want of jurisdiction, filed and overruled before the case was argued orally, in which motion these same points were made.

Inasmuch as respondent insists upon a determination of these questions we will now consider them.

I. If respondent is correct that this is an ex parte proceeding, and the Commissioners for the Blind are not parties to it, then they are not bound by any judgment the circuit court may render, and they may disregard such judgment. We fail to understand what a judgment for the petitioner would be worth to her in such case.

II. The Commission for the Blind is not a court, and, under the Constitution, cannot perform any judicial functions; as the petitioner says in her motion, it is merely a ministerial body. [Lusk v. Stinson, 268 Mo. 109, l.c. 116-117.] The action of the Commission in rejecting an application is not a judgment; it is a ministerial order. The statute (Section 9, Laws 1923, p. 306) is inaccurate in saying that one aggrieved by the action of the Commission may "appeal" from its decision. It is not in any sense an appeal. The evident intention of the Legislature was to provide that the circuit court might review the action of the Commission, just as it reviews the action of the Public Service Commission or of a Board of Equalization. Said Section 9 provides for notice to the Commission, before the circuit court can proceed to hear a case. The action of the Public Service Commission or a Board of Equalization is brought to the attention of the circuit court by a petition for a writ of certiorari to have the records of the proceedings of such Commission or Board certified for review by the court. When that is done, and not before, there is a case in court, and for the first time the Commissioners or the Board members become parties to the proceedings. They are in court to show cause why their proceeding should be annulled.

In this case the applicant filed in the Circuit Court of Greene County her petition in which she recited that she had made application to the Commission for a pension; that the application was rejected notwithstanding her qualifications; that she was aggrieved by the action of the Commission, and prayed that her application be taken up and tried de novo by the court. No objection was made to this form of the proceeding to get the action of the Commission before the circuit court. On timely objection that court might have required the proceeding to be more formal. After the filing of that petition the Commission was "duly notified" and appeared by attorneys in court. How couldit be notified except by service of notice on the Commissioners? On the petitioner's theory, why should the Commissioners be notified? And why should they be allowed to appear and defend? So far as the objection shows the petitioner made no objection to the Commissioners' appearance. The right of the Commissioners to be parties to the proceeding should have been questioned then, if petitioner desired to make the point.

The Commissioners became parties when the petition of the applicant was filed in the circuit court and they were notified of the proceeding which brought into question their official acts. They were "aggrieved" by the order of the circuit court and had a right to appeal.

The motion for rehearing is therefore overruled.