State ex rel. Hall v. Burney

• Decision Date: 13 May 1935
• Docket Number: No. 18288.,18288.
• Citation: State ex rel. Hall v. Burney, 84 S.W.2d 659, 229 Mo.App. 759 (Mo. App. 1935)
• Parties: STATE OF MISSOURI EX REL. E.W. HALL ET AL., RELATORS. v. W.L.P. BURNEY, JUDGE, ET AL., RESPONDENTS.
• Court: Missouri Court of Appeals

84 S.W.2d 659

STATE OF MISSOURI EX REL. E.W. HALL ET AL., RELATORS. v. W.L.P. BURNEY, JUDGE, ET AL., RESPONDENTS.

No. 18288.

Kansas City Court of Appeals. Missouri.

May 13, 1935.

Original proceedings in prohibition by State on relation of E.W. Hall and others against W.L.P. Burney, Judge of Circuit Court of Henry County and others.

PROVISIONAL WRIT QUASHED AND PERMANENT WRIT DENIED.

Fred F. Wesner for relators.

Mark W. Wilson and Elmer B. Silvers for respondents.

REYNOLDS, C.

This is an original proceeding in prohibition, instituted in this court November 5, 1934, by the relators by their duly verified petition filed, by which it is sought to prohibit the respondent the Honorable W.L.P. Burney as judge of the circuit court of the twenty-ninth judicial circuit within and for Henry county from, among other things, proceeding under certain orders made by him as said judge with respect to the dismissal of a grand jury which had been regularly called and duly convened and organized for the October term, 1934, of the Circuit Court of Henry County and with respect to the calling, convening, and organizing of a special grand jury thereafter at said term of said court and from permitting such latter grand jury called to function as such and from entertaining the prosecution in said court of an alleged indictment assumed to have been returned by such grand jury to said court against certain defendants (other than relators herein), named therein, for the alleged commission of a misdemeanor in violation of the laws of the State of Missouri therein set out. It is further sought by such proceeding to prohibit the respondents Edwin Merritt et al., as joint correspondents with the respondent the Honorable W.L.P. Burney, from assuming to act and function as a grand jury under the said order of respondent Burney, through which they were purported to have been selected, convened, qualified, sworn, and organized as such, and from assuming to function as such under such order.

Upon the filing of relators' petition, a provisional writ was issued to the respondents restraining and prohibiting them from further cognizance of matters complained of in relators' petition and from further proceedings in the premises under the order of the court complained of and requiring them to appear on November 9, 1934, and show cause, if any, why they should not be absolutely prohibited and forbidden to hold cognizance of and prosecute the matters complained of by relators in their petition.

In response to said writ, respondents filed a motion to dismiss as follows:

"Motion To Dismiss.

"Respondents move the court to dismiss this proceeding for the reason that it seeks to prohibit respondents from proceeding in any wise whatever in matters pertaining to investigation and prosecution of felonies. That the matters involved are as set forth in respondents' response to the order to show cause herein, reference to which is hereby made."

This motion, without having been disposed of, was accompanied or followed by a pleading labeled in the record, "Response of respondents on order to show cause why writ should not issue," in which pleading or response the respondents set out and assigned in detail certain alleged reasons why the writ should not issue.

On November 13, 1934, relators filed their reply to respondents' so-called response. On December 4, 1934, respondents filed a formal return to the provisional writ, to which return so filed relators refiled their reply to the pleading designated as "Response of respondents on order to show cause why writ should not issue," together with a general denial as a reply to the formal return.

The essential facts stated in relators' petition are, in a general way, as follows: The relators are citizens and taxpayers of Henry county; and, as such, they are interested in this cause; and, as such, they institute the same at the relation of the State in their own behalf and in behalf of all other like-situated citizens and taxpayers of said county. The respondent, the Honorable W.L.P. Burney is judge of the circuit court of the twenty-ninth judicial circuit in and for Henry county. The remaining respondents (naming them), acting generally with the respondent the Honorable W.L.P. Burney and under his orders and directions are assuming to act in the character of a grand jury at and for the September term, 1934, of the Circuit Court of Henry County and are assuming to exercise the authority of a grand jury and discharge the functions of such a jury as contemplated by the laws of Missouri and, in so doing, are acting irregularly and oppressively, without authority of law, in excess of and without jurisdiction so to do, and through color of authority only. On August 6, 1934, the respondent the Honorable W.L.P. Burney as judge made a call for the selection and convening and organization of the regular grand jury for the September term, 1934, of said court; and, in pursuance of said order, twelve persons were duly selected and summoned as grand jurors for such term of court (naming them), who appeared, qualified, convened, and organized as such grand jury for said term of court, and began the discharge of their duties as such. While such persons were thus in the discharge of their duties, functioning as a grand jury and having not yet completed such duties, the respondent Burney as judge made and entered an order discharging them as a grand jury and thereupon made and entered an order for the selection, convening, and impaneling of a second or special grand jury for the said term.

The order discharging the original grand jury was made without cause and upon a motion of the prosecuting attorney. Such order so discharging the original grand jury, together with the motion of the prosecuting attorney for said order, is set out in full in the petition. Likewise, the order for the selection, convening, and impaneling of the second or special grand jury is set out in full in the petition.

Further facts gathered from the petition are as follows: Upon the making of the order by the respondent Burney for the special jury, the respondents herein (other than the respondent Burney) appeared at said term and qualified as special grand jurors in said circuit court for the term without any legal summons having been issued or regularly served upon them by the sheriff of Henry county and without any return of service of summons having been made by such sheriff and without their selection having been made by such sheriff; and, after having been selected by the respondent Burney, such respondents have assumed to organize and function as a grand jury under the purported order made by respondent Burney as judge and under a further purported order naming, qualifying, and constituting them as such grand jury and, so assuming to act as a grand jury under the direction of respondent Burney, have assumed to return a purported indictment to the Circuit Court of Henry County against certain persons named as defendants therein (being persons other than relators) purporting to charge such persons with a misdemeanor in violation of the laws of the State; and, assuming to act with them in such matter, respondent Burney as judge of said court has permitted the filing of said purported indictment of record in said court and has caused process to issue thereunder and the defendants named therein to be arrested and to appear in court to answer such indictment and, unless prohibited from so doing, will cause a jury to be summoned and impaneled and witnesses to be subpoenaed and said persons put upon their trial, all to the great expense of the taxpayers of Henry county.

The prayer of the petition is for the issuance of our writ prohibiting the respondent Burney and all other respondents from proceeding in the matters complained of or doing any other act complained of in the premises.

The petition sufficiently challenges all of the acts complained of upon the part of the respondent Burney as judge as unlawful and wrongful and as done without and in excess of his jurisdiction therefor as judge and as being null and void; and it sufficiently challenges the acts of the remaining respondents in assuming to convene, organize, and function as a grand jury and to return the indictment mentioned, whether done separately or jointly with and under the direction of respondent Burney or otherwise, as unauthorized by law, wrongful, unlawful, and oppressive and as in excess of and without any jurisdiction in them or the court and the judge thereof.

The ultimate relief sought by relators in their petition is to secure the permanent writ of this court prohibiting the prosecution and trial of the defendants named in the alleged indictment complained of, for the misdemeanor with which they are charged under said indictment, upon the alleged ground that the prosecution thereof by reason of the alleged, void proceedings leading thereto involves an unlawful and wasteful expenditure of the funds of the taxpayers of Henry county and of relators' funds as such taxpayers, by which they will suffer irreparable injury.

The formal return of respondents first, in substance, challenges relators' petition as failing to state facts sufficient to state a cause of action and as showing upon its face that the relators have no right to maintain this action.

It makes denial that respondent grand jurors were selected by respondent Burney or by the Circuit Court of Henry County, Missouri, in the manner charged in relators' petition or by any other agency or officer thereof except the sheriff of Henry county, in the manner provided by law and by the order of the court calling for the summoning of the grand jury.

It affirmatively alleges, in substance, that respondent grand jurors were regularly selected and summoned by the sheriff; that said sheriff made return of his summons during the September term, 1934, of the court; and that the jurors so summoned, being the respondent...