Cnty. of St. Louis v. Clay

• Decision Date: 30 June 1837
• Citation: 4 Mo. 559
• Parties: COUNTY OF ST. LOUIS v. GEORGE CLAY.
• Court: Missouri Supreme Court

4 Mo. 559

COUNTY OF ST. LOUIS

v.GEORGE CLAY.

Supreme Court of Missouri.

June Term, 1837.

APPEAL FROM THE ST. LOUIS CIRCUIT COURT.

MULLANPHY, for Appellant. The main question in this case is this: was it necessary for the circuit attorney, in person, to commence this action before the justice? or to state the question with a more direct relation to the subject in hand, was it necessary for the circuit attorney, in person, to commence before the justice an action on the 8th section of the act regulating estrays, approved February 19th, 1825? I think not: for the following reasons: 1st. Because the circuit attorney is nowhere mentioned in the 8th section of the act regulating estrays, approved February 19th, 1825, or in any other section of the said act. 2nd. Because the law prescribing the duties of the circuit attorney, and commanding him to prosecute, &c., Revised Code of 1825, p. 157, must, in reason, be referred to courts of record, where attorneys are recognized a employed. Hence the term attorney of record. The pleadings before justices of the peace are ore tenus, and consequently the complaint in this cause need not have been signed by any person as attorney. Therefore the signature of the attorney's name attached to the complaint before the justice is mere surplusage, and can have no effect one way or the other. Regular attorneys are not necessary to proceedings before a justice, and are not recognized as such in justices courts. 3d. Because the law cannot have contemplated to make the circuit attorney a prosecutor in the justice's court, and at the same time made the self-same circuit attorney the legal adviser of the justice in giving his decisions upon the very matters which the circuit attorney has as prosecutor argued before such justice, which would be the result of making the circuit attorney prosecutor before the justice. When the act prescribing the duties of the circuit attorney commands him (Rev. Code of 1825, p. 157) without fee or reward, to give his opinion to any justice of the peace, any county court, or any tribunal established for the transaction of county business, or any justice or member thereof, within his circuit, when required, on any question of law arising in any criminal case, or other case, wherein the State, or any county, is concerned, pending before such officer, court, or tribunal. 4th Because, in the same section of the law from which the above quotation is taken, and immediately preceding the above quotation, the circuit attorney is commanded to prosecute, &c., and then, immediately afterwards, in the same section, in the next sentence of the same section immediately after, he is commanded to prosecute in the law contained in the above quotation, the same circuit attorney is constituted the legal adviser and quasi co-assessor and co-judge, with the justice of the peace, on any question arising in any criminal case, or other case, wherein the State or any county is concerned, pending before such justice of the peace. I then contend that section must be construed so as not to make the circuit attorney prosecutor before the justice in those cases in which he is constituted the legal adviser and quasi co-assessor and co-judge of the justice which is the reasonable prima facie and apparent reading and construction of that section. 5th. Because, to oblige the circuit attorney to prosecute before the justice in an action like this, would be inconvenient-- argumentum ab inconvenienti pluremum valet in lege--Coke. Some of the circuit attorney's circuits in this State contain sixty or seventy justices' courts, continually and daily employed in trying assaults and batteries, and other actions, which are brought in the name of the State, or of counties, which said State and counties are interested in the same; and should the circuit attorney be obliged to commence prosecution before the justice in this, those, and the like actions, one of the two following consequences would result: there would be a complete and universal denial of justice; because it would be impossible for the circuit attorney to commence and prosecute myriads of actions in the myriads of justices' courts in his circuit, and at the same time follow and attend upon the grand juries and the circuit court. 6th. Because, it has not been the practice of the country that statutory actions, in which the fine or forfeiture goes to the State or county, and in which the fine or forfeiture is to be recovered before a justice of the peace, such as actions for assault and battery, and others, be commenced before the justice of the peace by the circuit attorney. And herein for the support of this argument, an appeal has to be made to the...