F----- C-----, In re

• Decision Date: 02 August 1972
• Docket Number: No. KCD,KCD
• Citation: 484 S.W.2d 21
• Parties: In the Matter of F___ C___, a minor by his father. 26197.
• Court: Missouri Court of Appeals

Page 21

484 S.W.2d 21

In the Matter of F___ C___, a minor by his father.

No. KCD 26197.

Missouri Court of Appeals, Kansas City District.

Aug. 2, 1972.

T. E. Lauer, National Juvenile Law Center, St. Louis, for petitioner.

Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, for respondent.

SHANGLER, Chief Judge.

In this original proceeding in habeas corpus the juvenile petitioner seeks to be discharged from the custody of the Superintendent of the State Training School for Boys under a commitment given by the Juvenile Division of the Circuit Court of Pulaski County.

The issue raised is as to the jurisdiction of a juvenile court to proceed upon a petition filed by its juvenile officer who at the same time occupies the office of prosecuting attorney of the county. The jurisdictional defect asserted is that the two offices are in conflict and incompatible with the provisions and purposes of the Juvenile Act so that a petition filed by the juvenile officer, while occupying the office of prosecuting attorney, is unauthorized and without legal effect, and the judgment entered upon it is void.

The pleadings were accompanied by a stipulation of the parties from which we extract these determinative facts: On December 20, 1971, the petitioner and two other juveniles were taken into custody, and then released, by a highway patrolman who observed two of them shooting out Christmas decorations strung on utility poles along Highway 17 in Waynesville. A written police report describing these incidents was given to Charles M. Wesley, Juvenile Officer and Prosecuting Attorney of Pulaski County. Mr. Wesley assumed the office of Prosecuting Attorney of Pulaski County on January 1, 1967 and has since occupied and served in that office continuously. Mr. Wesley was appointed Juvenile Officer by the Juvenile Division of the Circuit Court of Pulaski County on January 3, 1967 and has since occupied and served in that office continuously. On December 23, 1971, Mr. Wesley, as Juvenile Officer, wrote the petitioner's father requesting his presence, and that of his son, on a specified date. As the result of that conference, the juvenile was informed that 'he would be on probation' for six months and would be expected to attend school regularly and observe a 9 o'clock, p.m. curfew. In this, Mr. Wesley was acting on his own initiative as Juvenile Officer and had not brought the matter to the attention of the Court.

Then, on about March 9, 1972, upon his information that the juvenile had been involved in 'school bus incidents', Mr. Wesley, as Juvenile Officer, summoned the petitioner and his father to his office once again. Then, on March 12, 1972, as Juvenile Officer, Mr. Wesley again requested that the juvenile and his father return to his office because he had been informed that the juvenile had been involved in a burglary at the Waynesville High School. Father and son complied with each such request. On March 20, 1972, a petition in the interest of the juvenile petitioner, signed by Mr. Wesley as Juvenile Officer, was filed in the Juvenile Division of the Circuit Court of Pulaski County. A hearing was held on the petition on April 19, 1972 at which the Juvenile was represented by counsel privately employed. The court determined that the juvenile was a proper subject for the exercise of its jurisdiction under the Juvenile Act on the basis of these findings:

'Said child has heretofore violated penal statutes of the State of Missouri or ordiances (sic) of the City of Waynesville, Missouri, on (sic) that he did become disrupted (sic) of orderly school procedures, that he is disorderly and on occasions uses vile words in presence of other school children on school bus, participated in assault on school girls who were passengers of the school bus operated by his father, that juvenile was in possession of an air pistol, apparently stolen from Western Auto Store, in Waynesville, Missouri, and was using their air pistol to shoot out Christmas decorations electric light bulbs, and that Juvenile has been counseled by the Juvenile Officer and given Verbal rules of conduct to follows (sic) by the Juvenile Officer, which Juvenile would not follow, including a curfew dead line.'

The juvenile petitioner was thereupon committed to the custody of the respondent Superintendent of the State Training School for Boys.

The order of commitment which was attached to, and is thus a part of, the respondent's Return to Writ of Habeas Corpus reflects the appearances at the April 19, 1972 adjudication of the petition in these terms: 'Comes now the juvenile officer of this circuit in person and by Charles M. Wesley, Prosecuting Attorney of Pulaski County, Missouri, and comes also F___ C___, the child in whose interest the petition has been filed herein, in proper person and by Dale H. Close and Craig E. Miller, his attorneys chosen by the parents of said child (and) W.K.C. parent and natural guardian(s) of said child.

The request of petitioner's counsel that the notice of appeal from the court's judgment serve as a supersedeas in the manner provided by section 211.261, V.A.M.S., was denied by the court. Actually, however, the juvenile has neither appealed in the normal course, nor has he made application to this court under Civil Rule 81.07, V.A.M.R.--an alternative still not foreclosed to him--to file an appeal out of time.

The writ of habeas corpus is not available to correct trial error, but reaches jurisdictional error only. Label v. Sullivan, 350 Mo. 286, 165 S.W.2d 639, 641(4); 39 Am.Jur.2d, Habeas Corpus, sec. 28. The writ takes cognizance of only those defects, patent on the face of the record, in the proceedings and judgment under which the petitioner is held. The writ constitutes a collateral attack on the judgment or order and is not a writ of review. Griggs v. Venerable Sister Mary Help of Christians, Mo.App., 238 S.W.2d 8, 13(3-5); 39 C.J.S. Habeas Corpus § 13, p. 443. The Habeas Corpus Act denies its remedy to a petitioner who can be 'otherwise relieved'. Sec. 532.010, V.A.M.S. Thus, the writ is not a substitute for an appeal, and will not issue where the remedy by appeal is available and is plainly adequate. Hamilton v. Henderson, 232 Mo.App. 1234, 117 S.W.2d 379, 383(15, 16). An exception inheres in this rule: where the remedy by appeal is not speedy or adequate to preserve a fundamental right of a petitioner held under a judgment of a court without jurisdiction, habeas corpus is a proper remedy to challenge the detention notwithstanding the petitioner has failed to appeal. In re Solis, 274 Cal.App.2d 344, 78 Cal.Rptr. 919, 921(1-4); Fulwood v. Stone, 129 U.S.App.D.C. 314, 394 F.2d 939 (1967); Ex parte Thamm, 10 Mo.App. 595; 39 C.J.S. Habeas Corpus § 15.

We believe the petitioner has no adequate remedy except by this proceeding. The denial of supersedeas by the juvenile court virtually assures that the petitioner will have completed most, if not all, of his detention under the court's order of commitment before his appeal can be determined by an appellate court in the normal course of its business. ¹ In circumstances when an appeal would be without efficacy to afford petitioner relief in time to avoid serving his detention, habeas corpus is a proper alternative remedy. In re Newbern, 53 Cal.2d 786, 3 Cal.Rptr. 364, 367, 350 P.2d 116, 119(1); Ex parte Cavitt, 170 Wash. 84, 15 P.2d 276, 277(2).

Issues other than as to the juvenile court's jurisdiction have been tendered by the pleadings, which, although ordinarily cognizable in appellate review, are not for decision in this proceeding. Consequently our consideration will be confined to the jurisdictional contention that the juvenile court could not proceed upon a petition filed by a juvenile officer who then occupied the incompatible public office of prosecuting attorney. The petitioner asserts, on two distinctly cognizable principles of law, that the effect of the incompatibility of offices was to deprive the juvenile court of jurisdiction to proceed on the petition and to enter the judgment under which petitioner is held: First, the rule of the common law that a public officer cannot hold two incompatible offices at the same time; and, Second, that a juvenile process which permits the same person to exercise the conflicting offices of prosecuting attorney and juvenile officer violates the intent and purpose of the Juvenile Act and denies due process of law.

The rule at common law is well settled that where one, while occupying a public office, accepts another, which is incompatible with it, the first will ipso facto terminate without judicial proceeding or any other act of the incumbent. The acceptance of the second office operates as a resignation of the first . . . This rule it is said, is founded upon the plainest principles of public policy, and has obtained from very earliest times . . . (T)he law presumes the officer did not intend to commit the unlawful act of holding both offices, and a surrender of the first is implied.' State ex rel. Walker v. Bus, Mo. banc, 135 Mo. 325, 36 S.W. 636, 637(1); State ex rel. Owens v. Draper, 45 Mo. 355. This rule still obtains and 'has never been questioned'. State ex rel. McGaughey v. Grayston, Mo. banc, 349 Mo. 700, 163 S.W.2d 335, 339(10). If we assume, only for the purposes of discussion, that the offices of prosecuting attorney and juvenile officer are public offices within the definition given in State ex rel. Walker v. Bus, supra, 36 S.W. l.c. 637 and as later modified by the Supreme Court en banc, ² and are inconsistent in function, the surrender of the first office which is implied in the common law rule does not invalidate the acts of the occupant of the first office so far as third persons and the public are concerned, but that occupant becomes a de facto officer until ousted by proper process. ³ State v. Boiselle, 83 N.H. 339, 143 A 704, 706(6); Thomas Sheehan's Case, 122 Mass. 445, 466, 23 Am.Rep. 374; State v. Mayor, etc....