State ex rel. Lashly v. Wurdeman

• Decision Date: 07 April 1914
• Parties: STATE OF MISSOURI ex rel. ARTHUR V. LASHLY, Prosecuting Attorney, Relator, v. GUSTAVUS A. WURDEMAN, Judge, Respondent
• Court: Missouri Court of Appeals

166 S.W. 348

183 Mo.App. 28

STATE OF MISSOURI ex rel. ARTHUR V. LASHLY, Prosecuting Attorney, Relator, v. GUSTAVUS A. WURDEMAN, Judge, Respondent

Court of Appeals of Missouri, St. Louis

April 7, 1914

WRIT MADE PEREMPTORY. CAUSE CERTIFIED TO SUPREME COURT.

Writ made peremptory. Cause certified to Supreme Court.

Arthur V. Lashly, Prosecuting Attorney, George Barnett, Assistant Prosecuting Attorney, and E. R. Chappell, Assistant Prosecuting Attorney, for relator.

Sam D Hodgdon, J. C. Kiskaddon, R. H. Stevens and F. E. Mueller for respondent.

NORTONI J. Allen, J., concurs. Reynolds, P. J., dissents.

OPINION

Mandamus. Original Proceeding.

NORTONI J.

This is a proceeding in mandamus. The alternative writ issued in virtue of the original power of this court in that behalf provided.

The relator is the prosecuting attorney of St. Louis county, duly elected and qualified. The respondent is judge of the circuit court of the same county and presides in division No. 2 of that tribunal. The question for consideration relates to, and the writ is invoked with a view of vindicating, the right of the prosecuting attorney to appear in the circuit court and defend a suit in which the county is interested.

The relevant facts out of which the controversy arises are as follows: It appears that one Hornberg presented to the county court of St. Louis county an application for a dramshop license, in proper time and in due form, and the county court declined to consider or act upon it; that thereafter, on the same day, Hornberg sued out an alternative writ of mandamus against the judges of the county court, John Wiethaupt, William Buermann and Albert Wilmas, commanding them to appear in the circuit court, division No. 2, and show cause, if any they had, why they, as judges of the county court, should not proceed and act upon the petition of Hornberg for a dramshop license. To this mandamus proceeding so instituted in Division No. 2 of the circuit court, over which the respondent here, Judge Wurdemann, presides, the respondents in that proceeding--that is, the judges of the county court, Wiethaupt, Buermann, and Wilmas--made their return in writing through counsel other than relator, the prosecuting attorney of the county. Upon the coming in of the return of the judges of the county court in that case, relator, prosecuting attorney, appeared and moved the circuit court to permit him to assume control of the defense in the matter, on the ground that it was one in which the county was interested, and that, therefore, the statute made it incumbent upon him to do so. This motion and request the court denied, as though it were competent for the county judges to exclude the prosecuting attorney with respect to the matter of the defense of that case and employ other counsel to control and manage it. It is in assertion of his right to control and manage the defense of the mandamus suit pending in the circuit court against the judges of the county court with respect to the subject-matter of the application of Hornberg for a dramshop license that the prosecuting attorney, as relator, sued out the writ of mandamus here involved, and it is insisted the respondent, as judge of the circuit court, denied to him a clear legal right in refusing to permit the prosecuting attorney to assume control and manage the defense of that case.

In disposing of the question in judgment, it is essential to consider the relevant sections of the statute prescribing the duties of the prosecuting attorney, and to consider, too, the interests involved in the mandamus suit pending in the circuit court against the judges of the county court of St. Louis county.

It is to be said, first, that under the statutes both the judges of the county court and the prosecuting attorney are elected by the people of the county and with a view of serving its inhabitants in the discharge of the duties annexed by law to the respective offices of county court and prosecuting attorney. The office of the county court and of the prosecuting attorney are, of course, separate and independent and neither is necessarily subservient to the other. The county court consists of three judges, elected by the people, but its members are not required to be learned in the law, while one of the qualifications prescribed for the prosecuting attorney is that he shall be so learned. By statute, certain judicial duties and certain other ministerial and administrative duties are committed to the county court, while other statutes commit certain duties which appertain to the profession of a lawyer to the prosecuting attorney as the law officer of the county. In respect of the latter, sections 1007 and 1008, R. S. 1909, are to be here considered.

"The prosecuting attorneys shall commence and prosecute all civil and criminal actions in their respective counties in which the county or State may be concerned, defend all suits against the State or county, and prosecute forfeited recognizances and actions for the recovery of debts, fines, penalties and forfeitures accruing to the State or county; and in all cases, civil and criminal, in which changes of venue may be granted, it shall be his duty to follow and prosecute or defend, as the case may be, all said causes, for which, in addition to the fees now allowed by law, he shall receive his actual expenses. When any criminal case shall be taken to the courts of appeals by appeal or writ of error, it shall be their duty to represent the State in such cases in said courts, and make out and cause to be printed, at the expense of the county, and in cities of over 300,000 inhabitants, by the city, all necessary abstracts of record and briefs, and if necessary appear in said court in person, or shall employ some attorney at their own expense to represent the State in such courts, and for their services shall receive such compensation as may be proper, not to exceed twenty-five dollars for each case, and necessary traveling expenses, to be audited and paid as other claims are audited and paid by the county court of such county, and in such cities by the proper authorities of the city." [Section 1007, R. S. 1909.]

"He shall prosecute or defend, as the case may require, all civil suits in which the county is interested, represent generally the county in all matters of law, investigate all claims against the county, draw all contracts relating to the business of the county, and shall give his opinion, without fee, in matters of law in which the county is interested, and in writing when demanded, to the county court, or any judge thereof, except in counties in which there may be a county counselor. He shall also attend and prosecute, on behalf of the State, all cases before justices of the peace, when the State is made a party thereto: Provided, county courts of any county in this State owning swamp or overflowed lands may employ special counsel or attorneys to represent said county or counties in prosecuting or defending any suit or suits by or against said county or counties for the recovery or preservation of any or all of said swamp or overflowed lands, and quieting the title of the said county or counties thereto, and to pay such special counsel or attorneys reasonable compensation for their services, to be paid out of any funds arising from the sale of said swamp or overflowed lands, or out of the general revenue fund of said county or counties." [Section 1008, R. S. 1909.]

It is to be observed that section 1007, above copied, makes it the duty of the prosecuting attorney to defend all suits against the State or county, and, indeed, it is conceded in the instant case that, if the mandamus proceeding in the circuit court against the three judges of the county court were a suit against the county, no one could deny or gainsay the right of the prosecuting attorney to control and manage the defense therein. Touching this question, it is said in the brief of respondent, "If an action is brought against the county, the prosecuting attorney can defend it and no county court has power to compel him to act otherwise than his judgment dictates. He can also institute an action for the county and in his conduct of the case he is absolutely independent of all control." We quote this as a concession in the argument here, but it is said it does not apply to the instant case, in which the prosecuting attorney insists upon his right to appear.

In Kansas, the statutes concerning the county commissioners and the county attorney are similar to those which obtain with respect to our county courts and prosecuting attorney. The matter of a suit against the county of Leavenworth being under consideration in that State, the Supreme Court stated the doctrine precisely as we understand it, touching the question of the right of the county commissioners or the prosecuting attorney to control the case in court. Of this the court said, in Clough & Wheat v. Hart, 8 Kan. 487, 494:

"The county attorney is elected by the people of the county and for the county. He is the counsel for the county, and cannot be superseded or ignored by the county commissioners. His retainer and employment is from higher authority than the county commissioners. The employment of a general attorney for the county is not by the law put into the hands of the county commissioners, but is put into the hands of the people themselves. The county attorney derives his authority from as high a source as the county commissioners do theirs, and it would be about as reasonable to say that the county attorney could employ another board of commissioners to transact the ordinary business of the county as it is to say that the county commissioners can employ another attorney to transact the ordinary legal business of the...