State ex rel. Henderson v. Cook, 38948.

• Decision Date: 05 September 1944
• Docket Number: No. 38948.,38948.
• Citation: 182 S.W.2d 292
• Parties: STATE OF MISSOURI, at the Relation of W.G. HENDERSON, Supervisor of the Department of Liquor Control, Relator, v. JOHN F. COOK, Judge of the Circuit Court of Jackson County, Missouri, Division No. 2.
• Court: Missouri Supreme Court

182 S.W.2d 292 STATE OF MISSOURI, at the Relation of W.G. HENDERSON, Supervisor of the Department of Liquor Control, Relator,
v.
JOHN F. COOK, Judge of the Circuit Court of Jackson County, Missouri, Division No. 2. No. 38948. Supreme Court of Missouri. Court en Banc, September 5, 1944.

Prohibition.

[182 S.W.2d 293]

PROVISIONAL RULE MADE ABSOLUTE.

Roy McKittrick, Attorney General, and Aubrey R. Hammett, Jr., Assistant Attorney General, for relator.

(1) The Supreme Court has original jurisdiction of the writ of prohibition. Art. VI, Sec. 3, Mo. Constitution. (2) In the case at bar it was not necessary that the jurisdiction of the lower court be first challenged. 4 Houts, Missouri Pleading & Practice, sec. 1227, p. 466; State ex rel. v. Sevier, 88 S.W. (2d) 154; State ex rel. Ross v. Sevier, 334 Mo. 977, 69 S.W. (2d) 662; State ex rel. v. Bright, 224 Mo. 514; State ex rel. Anheuser Busch Brewing Assn. v. Eby, 170 Mo. 497; State ex rel. v. Harris, 81 S.W. (2d) 632. (3) Prohibition lies to prevent the exercise of a judicial power where there is a total lack of jurisdiction or where the court is proceeding in excess of its jurisdiction and where there is no other adequate remedy for the relator to pursue as in the instant case. Secs. 4902, 4905, 4913, 4932, 4947, R.S. 1939; State ex rel. Judah v. Fort, 210 Mo. 512; State ex rel. Graham v. Seehorn, 246 Mo. 568; State ex rel. Orr v. Latshaw, 237 S.W. 770; State ex rel. Garry Realty Co. v. Hall, 17 S.W. (2d) 935, 322 Mo. 1118; State ex rel. Stone v. Thomas, 159 S.W. (2d) 600, 349 Mo. 22; High on Extraordinary Remedies (3 Ed.), sec. 762, p. 705; State ex rel. Bader v. Flynn, 159 S.W. (2d) 379; State ex rel. Public Serv. Comm. v. Mulloy, 62 S.W. (2d) 730, 333 Mo. 282; State ex rel. Castlen v. Mulloy, 55 S.W. (2d) 294; State v. Owen, 121 S.W. (2d) 765. (4) Equity courts will not interfere by injunction for the purpose of controlling act of public officers constituting inferior tribunals on matters properly relating to their jurisdiction. 4 Houts, Missouri Pleading & Practice, sec. 1021, p. 157; Oliver v. Orrick, 220 Mo. App. 614, 288 S.W. 966; Hughes v. State Board of Health, 137 S.W. (2d) 523, 345 Mo. 995; State v. Flynn, 159 S.W. (2d) 379; State v. Noel, 140 S.W. (2d) 57. (5) The proper remedy, if any at all, is by certiorari, and, in such case, only the record would be up for review. State v. Anderson, 101 S.W. (2d) 530; 2 High on Injunctions (4 Ed.), sec. 1242, p. 1249, sec. 1311, p. 1324; Gaertner v. City of Fond du Lac, 34 Wis. 497; McLellan v. Mayor, 99 Wis. 544, 75 N.W. 308. (6) The Circuit Court of Jackson County, Missouri, has no jurisdiction over the relator, Supervisor of the Department of Liquor Control. State ex rel. Gardner v. Hall, 282 Mo. 426; State ex rel. Highway Comm. v. Bates, 317 Mo. 696; Ward v. Public Service Comm., 341 Mo. 227. (7) The case at bar does not present a moot question and abstract proposition of law. State ex rel. Brown v. Bird, 73 S.W. (2d) 821.

Thomas J. Brown and Donald H. Latshaw for respondent.

(1) Plea to the jurisdiction should have been filed and overruled in circuit court before application for writ of prohibition can be considered by this court. State ex rel. Natl. Rys. v. Rutledge, 331 Mo. 1015, 56 S.W. (2d) 28; State ex rel. American Bankers Assur. Co. v. McQuillin, 260 Mo. 164, 168 S.W. 924. (2) Where the jurisdiction of the inferior court rests upon facts, any error in such court in determining its jurisdiction can be corrected by appeal, and prohibition will not lie. State ex rel. Crouse v. Mills, 231 Mo. 493, 133 S.W. 22; State ex rel. American Pigment &amp...