Ex parte Mitchell

• Decision Date: 23 April 1891
• Citation: 16 S.W. 118,104 Mo. 121
• Parties: Ex Parte Mitchell
• Court: Missouri Supreme Court

16 S.W. 118

104 Mo. 121

Ex Parte Mitchell

Supreme Court of Missouri, Second Division

April 23, 1891

Writ denied.

George H. Harrison and H. J. Drummond for petitioner.

(1) The local-option law having never been adopted in Marion county the circuit court had no lawful authority to hear and determine the case. Church on Habeas Corpus, sec. 356, pp 465-6; Ex parte Sam, 51 Ala. 34; Ex parte Winston, 9 Nev. 71. It is conceded that it is well settled in this state that a proceeding under the habeas corpus act will not be allowed to operate as an appeal or writ of error, which would be the remedy in mere error or irregularity of the court. Although the court may have had jurisdiction over the body of the petitioner, and the offense with which he was charged, yet as the judgment, under which he is held, is void for want of authority of law to render it, he is entitled to a discharge. Church on Habeas Corpus, sec. 371, p. 494; Ex parte Lange, 18 Wall. 176; Ex parte Wooldridge, 30 Mo.App. 612-618. If the lastcited case is persuasive authority, it is believed to be absolutely decisive of this case. (2) It is the duty of this court to assume or take jurisdiction in this proceeding, and examine all matters in any way tending to show the want of the existence of jurisdiction or lawful authority in the circuit court of Marion county to do what it did in the premises. Ex parte Rollins, 20 Va. 276; Cooley on Const. Lim. [4 Ed.] 431-435; Church on Habeas Corpus, sec. 366, p. 481 sec. 370, pp. 490-491; Ex parte Wooldridge, 30 Mo.App. 612. No appeal or writ of error lies to this court in the case against petitioner. Const. of Mo., sec. 12, art. 6; State v. McNeary, 88 Mo. 143. Its jurisdiction is original and it is the practice to exercise it. In re Swann, 96 Mo. 44; Ex parte Crenshaw, 80 Mo. 441, and authorities cited; Ex parte Turner, 44 Mo. 181; In re Snyder, 64 Mo 58-63; Ex parte Hallowell, 74 Mo. 395; Ex parte Clay, 98 Mo. 578; In re McDonald, 19 Mo.App. 370; In re Wooldridge, 30 Mo.App. 612.

John M. Wood, Attorney General, for respondent.

OPINION

Habeas Corpus.

Gantt P. J.

This is an application by the petitioner, Christian Mitchell, for release on a writ of habeas corpus, from the common jail of Marion county.

He avers that he is illegally restrained by the sheriff of said county, in this, that in November, 1889, he was indicted by a grand jury of said county for sling intoxicating liquors therein contrary to the provisions of what is known as the "local-option law," of Missouri; and that on the eleventh day of November, 1890, he was tried in the circuit court of said county and found guilty thereof, and his punishment fixed and assessed at a fine of $ 600, and a judgment for that amount was rendered against petitioner, and it was further adjudged that, if petitioner did not pay said fine, he should be committed to the common jail of said county until it was paid, together with the costs.

He further alleges that he did not pay said fine, and, by reason of his default, a capias execution was issued by the clerk of the circuit court of said county on the twenty-second day of December, 1890, to the sheriff of said county, who by authority thereof arrested petitioner and has ever since confined him in said county jail.

The illegality complained of is, that said "local option law" had not been adopted in said county, and, therefore, his imprisonment for violation thereof was illegal.

The return to the writ shows a capias execution in due form and that the officer is holding defendant to satisfy the same, in accordance with the judgment and sentence of the circuit court of Marion county.

By section 5376, of the Revised Statutes of Missouri, 1889, it is made the duty of the court before whom a prisoner is brought on a writ...