I concur in the opinion of my learned brother, except in regard to a reference in Paragraph I therein, which implies a right on the part of this court to review other than the Court of Appeals' opinion to determine the existence of a conflict of that court's ruling with our decisions.
No such right exists, nor has it ever existed. Recognition has loosely been given to such a right in discussing the question of a conflict in several former opinions. In these cases the source and limit of our authority is ignored and it is sought to be assumed that our power of review of the Courts of Appeals is akin if not equal to that given to us in other certiorari cases or in the review of a case upon appeal or writ of error. Other than by attempted judicial legislation there is no legal basis for this assumption. The superintending power of the Supreme Court under the Constitution (Sec. 8, Amdt. of 1884 to Art. VI) over Court of Appeals by mandamus, prohibition and certiorari is limited to requiring such courts to act within the scope of their jurisdiction. Semble: if a court of appeals refuses to act when it should act, the Supreme Court may, by mandamus, compel it to act; or if it threatens to act without authority, the Supreme Court may prohibit it from so doing; or if, in acting, it exceeds its constitutional powers, apparent from the *Page 1085 face of the record, the Supreme Court may by certiorari have its record certified and quash the same. [State ex rel. v. Robertson,264 Mo. 661, 175 S.W. 610.]
The Supreme Court, however, has no legal power to determine whether a Court of Appeals erred in its application of the rules of law to the facts, as disclosed in the record of the case, but only when in announcing the law upon the facts as stated in theopinion the Court of Appeals fails to follow the last previous ruling of the Supreme Court. [State ex rel. Amer. Yeoman v. Reynolds, 287 Mo. 169, 229 S.W. 1057.]
In State ex rel. Vulgamott v. Trimble, 300 Mo. l.c. 101,289 S.W. 796, we said: "The purpose of this peculiar form ofcertiorari is to secure uniformity of opinions, and the harmony of the law."
In State ex rel. Roberts v. Trimble, 316 Mo. l.c. 364, we said in effect: Under the clearly defined limitation upon our powers of supervision over inferior courts . . . including Courts of Appeals, in order that the record of a Court of Appeals . . . may be quashed by this court on certiorari, the opinion in such case must have announced and applied some general conclusion of law contrary to a ruling of this court on a like or similar state of facts.
In State ex rel. Bull Dog Auto Ins. Co. v. Bland, 291 S.W. (Mo.) 499, we held, with a strict regard for the limitation of the Constitution, that the purpose of the exercise of the writ of certiorari to review the rulings of the Courts of Appeals, as in conflict with controlling decisions of this court, was to secure uniformity in opinions and harmony in the law.
Recognizing the correctness of this conclusion in State ex rel. Amer. Yeoman v. Reynolds, 287 Mo. l.c. 173, we said: "This ruling, which is but a repetition of others to a like effect, was not intended and does not limit the right of Courts of Appeals to authoritatively construe any statute. Their right in this regard is final and unlimited except where their construction contravenes a decision of this court. Until such contravention is found to exist, our interference by certiorari is unauthorized, because our supervisory jurisdiction is founded solely upon the fact that a Court of Appeals has not followed our last previous ruling. [Art. VI, Sec. 6, Amdt. 1884, Mo. Const.; State ex rel. Gilman v. Robertson, 264 Mo. 661; State ex rel. Tiffany v. Ellison, 266 Mo. 604.]"
The purpose of the grant of power to the Supreme Court to supervise the rulings of the Courts of Appeals being, as its terms indicate, to preserve uniformity in the rulings of our courts of last resort and to promote the harmony of the law, to what are we to look to ascertain whether that uniformity has been preserved? Even the tyro in the rules of interpretation would, without hesitancy, answer to the opinions themselves. If no lack of harmony be found therein *Page 1086 then the Supreme Court has reached the limit, under the Constitution, of its power to supervise the rulings of the Courts of Appeals. To attempt by delving into the transcripts or files sent up by a Court of Appeals under an order of the Supreme Court in a certiorari proceeding to determine whether its ruling contravened a decision of this Court would simply constitute an arbitrary and unauthorized exercise of power; and would transform the proceeding into a review as upon appeal or writ or error from the Court of Appeals to the Supreme Court. Such a course would, in effect, destroy the final jurisdiction of the Courts of Appeals and render them simply intermediate appellate tribunals. No such result was contemplated in their creation; and countenance, even by implication, should not be given to an attempted usurpation of this clearly defined final jurisdiction.