State Davis

• Decision Date: 08 February 1918
• Docket Number: No. 20670.,20670.
• Citation: 273 Mo. 660,201 S.W. 529
• Parties: STATE ex rel. CHICK v. DAVIS, Judge.
• Court: Missouri Supreme Court

201 S.W. 529

273 Mo. 660

STATE ex rel. CHICK v. DAVIS, Judge.

No. 20670.

Supreme Court of Missouri. In Banc.

February 8, 1918.

Rehearing Denied March 5, 1918.

Original Proceeding by the State, on the relation of Joseph S. Chick, Jr., against Hon. Arch B. Davis, Judge of Division 2 of the Criminal Court of Jackson County. Preliminary rule discharged.

Henry L. Jost, Michael E. Casey, Henry S. Conrad, R. R. Brewster, Frank P. Walsh, and James P. Aylward, all of Kansas City, for relator. Hunt C. Moore, Pros. Atty., I. B. Kimbrell, Shannon C. Douglass, Jr., Virgil Yates, and Martin J. O'Donnell, all of Kansas City, for respondent.

BLAIR, J.

Prohibition. The statute (section 4214, R. S. 1909) provides for five terms of the criminal court of Jackson county annually "three of which shall be held in the city of Kansas * * * and two at the city of Independence. * * *" On November 3, 1917, the September term at Kansas City was adjourned to Monday, November 5, 1917, and continued thenceforward from day to day. November 5, 1917, was the day the statute fixed as the day for beginning the November term at Independence. Relator's contention is that the arrival of the statutory time for beginning a term at Independence necessarily and, so to speak, automatically ended the September term at Kansas City, and that proceedings thereafter at Kansas City as of such September term were "coram non judice and void."

Courts can exercise judicial functions only when lawfully in session. State ex rel. v. Ross, 118 Mo. loc. cit. 47 et seq., 123 S. W. 196; Rhodes v. Bell, 230 Mo. loc. cit. 148, 130 S. W. 465; State v. Eaton, 191 Mo. loc. cit. 156, 89 S. W. 949. A circuit court may not adjourn to a time at or after which its own next term in the same county begins. State v. Jeffors, 64 Mo. loc. cit. 382. In that case, as in others applying the principle, the court was held at but one place in the county. In this state the circuit court in one county may adjourn to the date or beyond the date fixed for the next term in another county of the circuit. Section 3870, R. S. 1909; Lewin v. Dille, 17 Mo. loc. cit. 69; Samuels v. State, 3 Mo. loc. cit. 73 et seq.; State v. Pope, 110 Mo. App. 520, 85 S. W. 633. In the Samuels Case the principle of certain early decisions cited by relator from other states was rejected. It is discredited in most of the states of its origin, and the weight of authority and reason is against it. Stirling v. Wagner, 4 Wyo. loc. cit. 25 et seq., 31 Pac. 1032, 32 Pac. 1128; Borrego v. Territory, 8 N. M. 446, 46 Pac. 349; Gonzales v. Cunningham, 164 U. S. 626, 17 Sup. Ct. 182, 41 L. Ed. 572; Bidwell v. Love, 22 Okl. 549, 98 Pac. 425; State v. Pearson, 70 Kan. 901, 79 Pac. 1133; In re Estate of Hunter, 84 Iowa, loc. cit. 392, 51 N. W. 20. These decisions, though discussed in the briefs, have little to do with the question in this case. That question is whether the Independence term is in such sense a term of the same court that the arrival of the day for it automatically terminates the next previous term at Kansas City. In the practice it has not been so regarded. In this court, though we are required in criminal cases to scrutinize the record for error, causes have been heard and judgments affirmed on records disclosing that a term at Kansas City or Independence had overlapped one at the other place. This appears from our decisions. It has been true since the criminal court, of Jackson county was established. Further, the act itself contains provisions apparently contemplating that court may be held at Kansas City and Independence at the same time. The court has two divisions and two judges. It is expressly provided that both divisions shall not be in session at Independence at the same time. Section 4230, R. S. 1909. The judge of Division 2 "may hold court at Independence whenever, in the opinion of the judges * * * and the prosecuting attorney, his assistance shall be needed for the holding of court at Independence." Section 4226, R. S. 1909. From this it appears he may be called to hold court at Independence when his assistance is deemed necessary, but the judge being assisted is not to be engaged at that time at Independence but elsewhere, if at all. If the statute means that court may be held at Independence and at Kansas City at the same time, relator's proposition falls. Though the statute be not clear, its ambiguity opens the way for the rule that the actual construction given it for a long period by those charged with its administration, the supervising courts and the Legisature acquiescing therein, is regarded as strong evidence of its true meaning.

There is another consideration of first importance. The criminal court of Jackson county is a court of record (section 4205, R. S. 1909) and, as stated, is composed of two divisions and two judges (section 4220, R. S. 1909). Its clerk has separate offices and records at Independence and Kansas City (section 4218, R. S. 1909), and writs may be issued from either office. Such writs are "returnable to the court held at the place at which said writ or other process is attested." Section 4219, R. S. 1909. The transfer of cases from one division to another and from Independence to Kansas City, and vice versa, is governed by rules the statute authorizes, the judges to make. Section 4231, R. S. 1909. It is obvious the relation between the term at Independence and that at Kansas City is not the same, for example, as that between one circuit term and the next in Osage county (State v. Jeffors, supra), and that this difference is one having an important relation to the question in this case. The terms at Kansas City and Independence are as distinct as terms of the circuit court in different counties. In Burnett v. Prince, 197 S. W. loc. cit....