State ex rel. Macklin v. Rombauer

• Citation: 16 S.W. 502,104 Mo. 619
• Parties: STATE ex rel. MACKLIN v. ROMBAUER et al.
• Decision Date: 27 May 1891
• Court: United States State Supreme Court of Missouri

16 S.W. 502

104 Mo. 619

STATE ex rel. MACKLIN v. ROMBAUER et al.

Supreme Court of Missouri.

May 27, 1891.

PROHIBITION — ORDER TO SHOW CAUSE — ISSUANCE IN VACATION.

Under Const. Mo. 1875, art. 6, § 3, and Amend. 1883, § 8, giving the supreme court jurisdiction to issue writs of prohibition, and to hear and determine the same, and Rev. St. Mo. 1889, § 3243, providing that all courts shall have power to issue all writs which may be necessary in the exercise of their respective jurisdictions, "according to the principles and usages of law," a judge of the supreme court may in vacation issue an order to defendants to show cause at its following term why a writ of prohibition should not be issued. BLACK and BRACE, JJ., dissenting. Affirming 15 S. W. Rep. 850.

In bank. Application for writ of prohibition.

Given Campbell and O'Neill Ryan, for petitioner. F. M. Estes, T. P. Bashaw, and W. H. Clark, for respondents.

THOMAS, J.

The question now involved in this case has received our consideration, and we adopt the opinion of BARCLAY, J., 15 S. W. Rep. 850, as the opinion of this court sitting in banc, and order judgment to be entered accordingly. We will add that our attention has been called to the statement made by Lloyd in his work on Prohibition, (page 5,) as follows: "A writ of prohibition must be moved for in open court, and a judge at chambers has no power to grant it either in term or vacation." It is evident Mr. Lloyd here refers to the practice in the courts of common law, for on page 4 of the same work he uses this language: "The court of chancery may also grant a prohibition in all cases when the common-law courts are not sitting, for the court of chancery has power to grant a prohibition in vacation as well as term-time." And again, on page 58, he says: "But the application to the court of chancery in vacation need not be made in open court, but the inquisitor will, on a proper adffiavit, grant a writ returnable into the queen's bench or common pleas." By virtue of the provision in our constitution vesting all judicial power, "as to matters of law and equity," in the courts of the state, in the exercise of its original jurisdiction in prohibition in the absence of any statute on the subject, this court may "shape its proceedings in such form as will preserve the effectiveness of the ancient remedy administered by the superior courts, either of law or chancery, in the common-law system of jurisprudence." The judges of this court, having the combined powers of a chancellor and common-law judge, have authority to do what either might have done under the old system, in respect of this writ.

SHERWOOD, C. J., and BARCLAY, GANTT, and MACFARLANE, JJ. concur. BLACK and BRACE, JJ., dissent.

BLACK, J., (dissenting.)

This is an application for a writ of prohibition against the judges of the St. Louis court of appeals. On presentation of the petition to one of the judges of this court, he made a vacation order or rule upon the respondent to appear at the term of this court next following the date of the order, and show cause why the writ should not be granted. The respondents have filed a motion to quash the order, on the ground that the judge had no authority to make it, and this presents the only question to be noticed at this time. The constitution gives this court power to issue, hear, and determine writs of mandamus, etc., and other original remedial writs, and the late amendment says this court "shall have a superintending control over the courts of appeals by mandamus, prohibition, and certiorari." The statute recognizes the right of a judge to issue an alternative writ of mandamus, and hence a judge of this court may issue such a writ returnable to court in session. But we have no statute which gives, or even recognizes, the right of a judge to make a vacation order to show cause in prohibition. Indeed, we have no statute regulating the procedure in such cases, except that the chapter of the practice act relating to amendments is made to apply to...