State ex rel. Barker v. Wurdeman

• Decision Date: 10 February 1914
• Parties: THE STATE ex rel. JOHN T. BARKER, Attorney-General, v. GUSTAVUS A. WURDEMAN, Judge
• Court: Missouri Supreme Court

163 S.W. 849

254 Mo. 561

THE STATE ex rel. JOHN T. BARKER, Attorney-General, v. GUSTAVUS A. WURDEMAN, Judge

Supreme Court of Missouri

February 10, 1914

Record quashed.

John T Barker, Attorney-General, Ernest A. Green, Assistant Attorney-General, Arthur V. Lashly and George Barnett for relator.

(1) Certiorari will issue by the Supreme Court to an inferior court in order to prevent an unregulated or unauthorized exercise of powers by such inferior court in a habeas corpus case. State ex rel. v. Dobson, 135 Mo. 1; State ex rel. v. Broaddus, 245 Mo. 123; State ex rel. v Smith, 176 Mo. 99; State ex rel. v. Shelton, 154 Mo. 670; State ex rel. v. Lichta, 130 Mo.App 284; State ex rel. v. Broaddus, 238 Mo. 189; State ex rel. v. Knutt, 207 Mo. 167. (2) Under the allegations of the petition for habeas corpus, the circuit court exceeded its jurisdiction and exercised unauthorized powers in issuing the writ of habeas corpus. State ex rel. v. Dobson, 135 Mo. 1; R. S. 1909, secs. 2441, 2444; Ex parte Smotherman, 140 Ala. 168; Ex parte Roberts, 166 Mo 207. (3) The court acted without authority and in excess of its jurisdiction when it issued the writ of habeas corpus without notice of the application for the writ being given to the prosecuting attorney. R. S. 1909, sec. 2509; Lowe v. Summers, 69 Mo.App. 637; Hurd on Habeas Corpus (2 Ed.), p. 227; People v. Carter, 48 Hun, 165; People v. Navagh, 41 Hun, 188; People v. Pelham, 14 Wend. 48; People v. Carsels, 5 Hill, 164; People v. Brennan, 61 Barb. 540; People v. Kehl, 15 Mich. 330; People v. Melody, 91 N. Y. App. 569. (4) The petition for habeas corpus shows on its face that petitioner was arrested for the commission of a crime defined and created by law. R. S. 1909, secs. 7188, 7208. (5) The constitutionality of the law with which petitioner was charged with violating is not assailed in this case, and, therefore, habeas corpus will not lie. Ex parte Lucas, 160 Mo. 218; Ex parte Neet, 157 Mo. 527. (6) On habeas corpus, courts cannot examine into matters of defense. Ex parte Ruthven, 17 Mo. 541; Ex parte Bird, 19 Cal. 130. (7) The writ of habeas corpus was improvidently issued in this case because the time for which petitioner might be legally detained had not expired. R. S. 1909, secs. 2472, 4418. (8) The court exceeded its powers when it proceeded with the hearing of the habeas corpus case on its merits instead of quashing the writ when the return showed that the prisoner had been discharged by the sheriff on bail, and that he was no longer under restraint. Ex parte Caples, 58 Miss. 358; Ex parte Walker, 53 Miss. 366; Spiney v. Dahlman, 34 Neb. 692; Ex parte Whitney, 114 U.S. 564; Whitman v. Burgan, 70 Iowa 161; In re Cole, 14 Tex.App. 579; Ex parte Lampert, 21 Hun, 154; 15 Am. & Eng. Ency. Law, 159; 2 Spelling on Extraordinary Remedies (2 Ed.), sec. 1192. (9) Right of prisoner to discharge on habeas corpus does not depend upon the legality or illegality of his original caption, but upon the legality or illegality of his detention at the time of the return. Ex parte Dye, 32 Mont. 132; Ekin v. United States, 142 U.S. 651; Iasege v. Van de Carr, 166 U.S. 391; Hurd on Habeas Corpus (2 Ed.), pp. 251, 252. (10) When the return of the officer, undenied, shows that he is holding the petitioner under a valid warrant issued by a court of competent jurisdiction, the court must remand the petitioner. Any other action would be in excess of its powers. R. S. 1909, sec. 2474. (11) The sheriff had the authority without a warrant to arrest the petitioner for the offense of selling liquor without a license committed in his presence. Bishop on Criminal Procedure (2 Ed.), 183; R. S. 1909, sec. 7210. (12) The sheriff had the right to detain the petitioner for a reasonable length of time for the purpose of obtaining process. 3 Cyc. 895; R. S. 1909, secs. 4418, 7210; Ex parte Smotherman, 140 Ala. 168. (13) The habeas corpus is an attempt to collaterally attack the right of the Excise Commissioners to hold office.

A. E. L. Gardner for respondent.

(1) The function, or office, of the writ of certiorari, when invoked to supervise proceedings by habeas corpus, is to prevent an unregulated and possibly scandalous exercise of jurisdiction by the subordinate court or officer authorized to grant the writ of habeas corpus. State ex rel. v. Broaddus, 245 Mo. 141; State ex rel. v. Dobson, 135 Mo. 1. (2) Under the Constitution and statutes in proceedings by habeas corpus, in issuing the writ and determining the questions arising under it, the circuit court has the same power, authority and jurisdiction as the Supreme Court, and has the same duties to perform. Ex parte Jilz, 64 Mo. 211; In re McDonald, 19 Mo.App. 373; Ex parte Creasy, 243 Mo. 698; R. S. 1909, secs. 2442, 2509. (3) The writ of habeas corpus is an immediate remedy for every illegal imprisonment. Commonwealth ex rel. v. Brower, 9 Kulp (Pa.), 318; People ex rel. v. Wells, 68 N.Y.S. 59; People ex rel. v. Duryee, 188 N.Y. 445; People ex rel. v. Liscomb, 60 N.Y. 559, 18 Am. Rep. 211; Attorney-General v. Daboll, 90 Mich. 272; Ex parte Creasy, 243 Mo. 698; 2 Story on the Constitution (5 Ed.), sec. 1339; Cooley's Principles of Const. Law (2 Ed.), pp. 7, 300; 1 Kent Comm. (11 Ed.), Lecture 24, *pp. 27, 32; 3 Cooley's Bl. Comm. (3 Ed.), *pp. 129-138. (4) The writ of habeas corpus is a high prerogative writ given by the common law and of authority paramount to all other writs. By the production of the prisoner on a writ of habeas corpus the court acquires absolute jurisdiction of the person and the original cause of commitment is suspended until the cause is disposed of. The custody is not on the original warrant, but is under the authority of the writ of habeas corpus. State ex rel. v. Broaddus, 245 Mo. 140; Ex parte Creasy, 243 Mo. 679; Matson v. Swanson, 131 Ill. 255; State v. Sparks, 27 Tex. 705; In re Kaine, 55 U.S. 103; Barth v. Clise, 79 U.S. 401; Haley's Case, 1 Mod. 195; Tazacharly v. Baldo, 1 Salk. 352; 2 Story's Const. (5 Ed.), sec. 1339; Bacon's Abridgment, Habeas Corpus, B. 13. (5) (a) "In order to assert our rights, acknowledge our duties, and proclaim the principles on which our government is founded, we declare . . . that the privilege of the writ of habeas corpus shall never be suspended." Const. of Missouri, Bill of Rights, art. 2, Preamble, and sec. 26; State ex rel. v. Broaddus, 245 Mo. 139; 2 Story on the Constitution (5 Ed.), secs. 1338-1342. (b) What the Legislature may not do under the constitutional interdiction, no court should be bold enough to either dare to do or try to do. State ex rel. v. Broaddus, 245 Mo. 140; Ex parte Milligan, 71 U.S. 2; 1 Bailey on Habeas Corpus, sec. 3. (c) Suspension of the writ simply denies to the person arrested the privilege of its use to obtain his liberty. Anderson's Law Dictionary, pp. 500-501, "Habeas Corpus;" Cooley's Principles of Const. Law (2 Ed.), 300; 1 Cooley's Bl. Comm. (3 Ed.), *p. 135, note 16. (d) The enforced delay of over three months in the hearing and determination of the habeas corpus proceeding, coerced by the writ of certiorari issued herein, suspends the privilege of the writ of habeas corpus, impairs the substantial efficacy of that writ and curtails its efficiency. Constitution of Missouri, sec. 26, art. 2; State ex rel. v. Broaddus, 245 Mo. 139; Ex parte Gaume, 161 Mo. 390; Attorney-General v. Daboll, 90 Mich. 272; 1 Bailey on Habeas Corpus, sec. 3; 1 Kent Comm. (11 Ed.), Lecture 24, *pp. 26-27, 32; 3 Cooley's Bl. Comm. (3 Ed.), *pp. 129-138. (e) Petitioner thereby is denied his day in court by a side stroke or by indirection. State ex rel. v. Broaddus, 245 Mo. 141; State ex rel. v. McQuillin, 246 Mo. 540.

WALKER, J. Woodson, J., concurs; Graves and Faris, JJ., concur in separate opinion by Graves, J.; Lamm, C. J., and Brown and Bond, JJ., dissent. Faris, J., concurs in the views of Graves.

OPINION

In Banc.

Certiorari.

WALKER J.

This is a proceeding by certiorari instituted by the State, at the relation of the Attorney-General. The writ directed Gustavus A. Wurdeman, Judge of Division No. 2 of the Circuit Court of St. Louis County, respondent, to certify to this court a true copy of the record in a habeas corpus proceeding then pending before him, in which Henry L. Algermissen was petitioner and the sheriff of St. Louis county was defendant. In obedience thereto, the respondent filed in this court a complete copy of said record, and thereafter, on the 3rd day of October, 1913, filed his motion to quash the writ of certiorari and to dismiss the cause.

The proceedings in the circuit court were as follows:

On July 18, 1913, the sheriff of St. Louis county arrested Henry L Algermissen, charged with selling liquor without a license, the sale having been made in the view of the sheriff and another. Upon the arrival of the sheriff and another. Upon the arrival of the sheriff at the courthouse in Clayton with Algermissen in custody, about two hours after his arrest and before any formal charge had been preferred against him, a writ of habeas corpus was served on the sheriff commanding him to forthwith produce the body of Algermissen before the respondent and show by what legal authority he was holding him. The prosecuting attorney was not formally notified of the proceeding as required by section 2509, Revised Statutes 1909, but had actual knowledge of same. In compliance with the court's order the sheriff produced the body of Algermissen before the respondent, who at once admitted him to bail, conditioned upon his appearance before said circuit court in the habeas corpus proceedings on the 19th day of July, 1913, and ordered the sheriff on or before said day to make his return to the writ of habeas corpus. On July 18th, the prosecuting attorney filed an information in the office...