State ex rel. Macklin v. Rombauer
| Decision Date | 27 May 1891 |
| Citation | 16 S.W. 502,104 Mo. 619 |
| Parties | The State ex rel. Macklin v. Rombauer et al., Judges of the St. Louis Court of Appeals |
| Court | Missouri Supreme Court |
Motion to quash order to show cause overruled.
Frank M. Estes, Willis H. Clark and T. P. Bashaw for relator.
(1) A preliminary rule of prohibition may be properly issued by a judge in vacation. Lloyd on Prohibition, ch. 9, secs. 1, 2 3; Iveson v. Harris, 7 Ves. 251; 4 Inst. 81; Mayo v. James, 12 Gratt. 17; Ex parte Ray, 45 Ala 15; Ex parte Boothe, 64 Ala. 312; High on Extra. Rem., sec 785; Addison on Torts [Wood's Ed. 1881] sec. 1462; Const Mo., art. 6, secs. 3, 12; Const. Mo., secs. 5, 8, amendment to art. 6; State ex rel. v. Weeks, 93 Mo. 499. (2) The court of appeals has no final or conclusive jurisdiction in cases involving the construction of the constitution of the state of Missouri. Const. Mo., art. 6, secs. 2, 3, 12; Const. Mo., secs. 5, 6, 8, amendment to art. 6; State ex rel. v. Court, 41 Mo. 44; Thomas v. Mead, 36 Mo. 248; Vitt v. Owens, 42 Mo. 512; Trainer v. Porter, 45 Mo. 336; State ex rel. v. Court, 97 Mo. 279; State ex rel. v. Francis, 95 Mo. 44; Nall v. Railroad, 97 Mo. 68; In re McDonald, 19 Mo.App. 370; Ex parte Boenning-hausen, 21 Mo.App. 270; State ex rel. v. Seay, 23 Mo.App. 623; State ex rel. v. Blakemore, 104 Mo.; State ex rel. v. Macklin, 104 Mo.; State ex rel. v. Lewis, 76 Mo. 370; High Extr. Legal Remedies [2 Ed.] sec. 781; Quinbo Appo v. The People, 20 N.Y. 531; State v. Ridgell, 2 Bailey, 560; North Bloomfield G. M. Co. v. Keyser, 58 Cal. 315; Mastin v. Sloan, 98 Mo. 252; State ex rel. v. Burckhartt, 87 Mo. 533; Addison on Torts [Wood's Ed. 1881] sec. 1456.
Given Campbell and O'Neil Regan for respondents.
OPINION
IN BANC.
Prohibition.
The question now involved in this case has received our consideration, and we adopt the opinion of Barclay, J., as the opinion of this court sitting in banc, and order judgment to be entered accordingly.
We will add that our attention has been called to the statement made by Lloyd in his work on prohibition, page 5, as follows: " A writ of prohibition must be moved for in open court, and a judge at chambers has no power to grant it either in term or vacation." It is evident Mr. Lloyd here refers to the practice in the courts of common law, for on page 4 of the same work he uses this language: "The court of chancery may also grant a prohibition in all cases when the common-law courts are not sitting, for the court of chancery has power to grant a prohibition in vacation as well as in term time." And again on page 58 he says, "but the application to the court of chancery in vacation need not be made in open court, but the cursitor will, on a proper affidavit, grant a writ returnable into the queen's bench or common pleas."
By virtue of the provision in our constitution vesting all judicial power "as to matters of law and equity" in the courts of the state in the exercise of its original jurisdiction in prohibition, in the absence of any statute on the subject, this court may "shape its proceedings in such form as will preserve the effectiveness of the ancient remedy administered by the superior courts, either of law or chancery, in the common-law system of jurisprudence.
The judges of this court, having the combined powers of a chancellor and common-law judge, have authority to do what either might have done under the old system, in respect of this writ. Sherwood, C. J., and Barclay, Gantt and Macfarlane, JJ., concur; Black and Brace, JJ., dissent.
--
This is an application for a writ of prohibition against the judges of the St. Louis court of appeals.
On presentation of the petition to one of the judges of this court, he made a vacation order or rule upon the respondent to appear at the term of this court next following the date of the order, and show cause why the writ should not be granted. The respondents have filed a motion to quash the order, on the ground that the judge had no authority to make it, and this presents the only question to be noticed at this time.
The constitution gives this court power to issue, hear and determine writs of mandamus, etc., and other original remedial writs, and the late amendment says this court "shall have a superintending control over the courts of appeals by mandamus, prohibition and certiorari." The statute recognizes the right of a judge to issue an alternative writ of mandamus, and hence a judge of this court may issue such a writ returnable to court in session. But we have no statute which gives, or even recognizes, the right of a judge to make a vacation order to show cause in prohibition. Indeed, we have no statute regulating the procedure in such cases, except that the chapter of the practice act relating to amendments is made to apply to proceedings in prohibition. R. S. 1889, sec. 2116.
If a judge of this court has any power or authority to make the vacation rule, it must be found to exist at common law, for in the absence of any statute on the subject the principles and usuages of common law must govern. Acts of parliament, passed during and subsequent to the fourth year of the reign of James I., have no force and effect in this state (R. S. 1889, sec. 6561), and hence I cannot see what the English statutes cited in the majority opinion have to do with the question in hand.
A prohibition is a writ issuing properly only out of the court of king's bench, being the king's prerogative writ; but, for the furtherance of justice, it may now also be had in some cases out of the court of chancery, common pleas or exchequer. 3 Bla. 112. The account which Blackstone gives of the proceeding shows that it was inaugurated in court and not before a judge; nor is there anything to be found in the mode of procuring the writ, as laid down by Lloyd, which gives any countenance to the proposition that a judge could make the rule nisi in the vacation of the court. Lloyd on Prohib. 65. Indeed, that author says on page 5: "A writ of prohibition must be moved for in open court, and a judge at chambers has no power to grant it either in term or in vacation." A very full and complete enumeration of the powers of a single judge at chambers is given in 3 Chitty's Practice, beginning at page 19; and I find nothing there which leads to the conclusion that a judge at chambers could issue a rule to show cause in prohibition, unless that power was given by statute. Such an order does not appear to belong to those "minor and practical proceedings," which a single judge could make independently of any legislative authority, under the practice prevailing in the English courts.
It should be remembered also that judges of the courts in this state have never been supposed to possess the powers exercised by a single judge of the English high courts at chambers.
In the cases of State, etc., v. Judge, etc., 22 La. Ann. 581, and in State, etc., v. Judges, 35 La. Ann. 1075, the court found statutory and constitutional authority for one of the judges to issue in vacation provisional writs of mandamus and prohibition. Those cases, in my opinion, furnish no authority whatever for the conclusion reached and asserted in the majority opinion. "It is a fundamental principle that courts can exercise judicial functions only at such times and places as are fixed by law, and that the judges of courts can enter no orders in vacation except such as are expressly authorized by statute." 12 Am. & Eng. Encyc. of Law, 14. As I understand the law, a judge of this, or any other, court in this state can make those orders in vacation, and those only which some statute says he may make.
There may be some virtue in the plea of necessity put forth and pressed in the majority opinion, but it is a plea which should be addressed to the legislature and not to this court.
In my opinion the motion to quash should be sustained. Judge Brace agrees with me in what I have said.
Barclay, J. -- A verified petition for a writ of prohibition was presented by relator to one of the judges of the supreme court, during vacation thereof, upon consideration of which, the judge made an order upon defendants, composing the St. Louis court of appeals, to appear at the opening of the next ensuing term of the supreme court to show cause why the writ prayed should not be issued. On the opening of the following term, a motion was made to quash the preliminary vacation order as being unauthorized by law.
The petition for prohibition proceeded on the theory that the St. Louis court of appeals had no jurisdiction to entertain or adjudicate upon an original information in the nature of a quo warranto (then pending before it) against the present relator, the decision of which cause (as was alleged) involved a construction of the constitution of this state.
The duty has been assigned me of giving expression to our views on the question which this case presents, namely, whether a proceeding in prohibition, may be begun during vacation, by an order of one of the judges to defendants, to show cause to the court (at its following session) why the writ should not be issued.
The constitution confers original jurisdiction upon the supreme court to issue writs of prohibition, and to hear and determine the same (Const. 1875, art. 6, sec. 3; Amendment of 1884, sec. 8); but no procedure for the exercise of such jurisdiction is prescribed by the fundamental law or by any statute whatever.
Without a general review of the history of the writ it may be well at this point to remark that under the system of jurisprudence, from which ours is derived, a...
To continue reading
Request your trial