State ex rel. Morse v. Burckhartt

• Decision Date: 31 October 1885
• Citation: 87 Mo. 533
• Parties: THE STATE ex rel. MORSE et al. v. BURCKHARTT, Judge, et al.
• Court: Missouri Supreme Court

87 Mo. 533

THE STATE ex rel. MORSE et al.

v.BURCKHARTT, Judge, et al.

Supreme Court of Missouri.

October Term, 1885.

Prohibition.

WRIT DENIED.

D. H. McIntyre and W. J. & J. G. Babb for relators.

(1) The office of the writ of prohibition is to keep inferior courts within the limits of their proper jurisdiction, and when they get out of their jurisdiction or act without authority, or usurp or assume authority, a superior court, in the exercise of its superintending control by the means of this writ, will restrain the action of such courts. 3 Black. Com. 112; Bacon Ab. 7 London Ed.; Comyn's Dig., Title Prohibition; People v. Supervisors, 1 Hill 195, 200; Thomas v. Mead, 36 Mo. 232, 237; State ex rel. West v. Clark County Court, 41 Mo. 44, 49; Vitt v. Owens, 42 Mo. 512; State ex rel Harris v. Laughlin, 75 Mo. 148. (2) Where the failure of jurisdiction is apparent upon the face of the proceedings, which it is sought to prohibit, the superior court may interpose the extraordinary aid of prohibition at any stage of the proceedings below even after verdict, sentence or judgment. High Ex. Leg. Rem., sec. 774, (2 Ed.); Smith v. Langley, Lee's Cases, Hard. 317; Asgill v. Hunt, 10 Mod. Rep. 439; Chickham v. Dickson, 12 Mod. Rep. 132; Pool v. Gardner, Ibid. 206; State v. Ridgel, 2 Bailey, 560. (3) The act of March 25, 1875, was not repealed by any subsequent act. It is quite certain that the legislature never intended to repeal it. Repeals by implication are not favored. Cooley's Const. Lim. 183 (5 Ed.); Towle v. Marrett, 3 Me. 22; People v. Quiggs, 59 N. Y. 83, 88; 29 Gratt. 709; Naylor v. Field, 29 N. J. 287; State v. Berry, 12 Iowa, 58; Lehman v. McBride, 15 Ohio St. 573; Pac. Ry. Co. v. Cass Co., 53 Mo. 17; State ex rel Severance et. al., 55 Mo. 378, 386; Glasgow v. Lindell's Heirs, 50 Mo. 60, 79.A. M. Hough, J. C. McGinnis and Wellington Gordon for respondents.

(1) Mandamus was the proper remedy to compel the county court to grant the license. City, etc. v. Flanders, 71 Mo. 283; State, etc., v. Holt Co., 39 Mo. 523; State v. Austin, 10 Mo. 591; St. Louis Co. v. Sparks, 10 Mo. 117; State, etc., v. Myers, 80 Mo. 601; State, etc., v. Howard Co., 39 Mo. 377. (2) Where the jurisdiction of a court exists prohibition will not lie to prevent its exercise. It cannot be used as a substitute for appeal or writ of error. Ex parte Ellyson, 20 Gratt. 10; Arnold v. Shields, 5 Dana, 18; Wilson v. Berkstresser, 45 Mo. 283; Cooper v. Stocker, 9 Rich. 292; Ex parte Blackburn, 5 Ark. 21; State v. Railroad, 1 Rich. (N. S.) 46; Ex parte Gordon, 2 Hill, 363; People v. Seward, 7 Wend. 518; State v. Laclede Bank, 76 Mo.; Howard v. Pierce, 38 Mo. 300; Bowman case, 67 Mo. 146; Vitt v. Owens, 42 Mo. 512; High Ex. Leg. Rem., sec. 771 and 772; State v. Clark Co., 41 Mo. 44. Prohibition will in no case lie to an inferior court to restrain the issuing of an execution, for this is a ministerial not a judicial act. Ex parte Brandlacht, 2 Hill (N. Y.) 367. It is to prevent courts from going beyond their jurisdiction in the exercise of judicial powers. 2 Hill, supra, 367.

HENRY, C. J.

In September, 1885, Joseph Loring filed an application to the Boone county court for a dramshop license, under what is known as “The Downing” or ““high license law,” having complied with all the provisions of said law; and the county court so found, but refused the license, holding that the act approved March 25, 1875, prohibiting the granting of dramshop licenses within three miles of the State University was not repealed by the “Downing law” and was still in force. Thereupon the said Loring applied to the circuit court of Boone county for a mandamus to compel the county court to fix the amount of state and county tax as required by statute, and issue to him on payment thereof a dramshop license. To an alternative writ the county court appeared and demurred, relying upon the three mile law as a ground for the demurrer. The court overruled the demurrer and the county court refusing to plead further, the circuit court rendered its final judgment awarding a peremptory writ as prayed for, and the relators in the present proceeding, strangers to the record in the mandamus proceeding, have applied to this court for a writ of prohibition to prevent the said Geo. H. Burckhartt, judge, and Josiah W. Stone, clerk of the circuit court and the Boone county court, from issuing or causing to be issued a peremptory writ of mandamus compelling the judges of the county court to issue the dramshop license prayed for and for general relief.

Judge Burckhartt's return to the rule upon him states what occurred in his court, and in addition, that after the adjournment of his court in obedience to the order for a peremptory writ and prior to the service of the rule made by this court upon him, and without any notice to him of this proceeding the peremptory writ of mandamus was issued by the clerk of the said court and placed in the hands of the sheriff of Boone county for service. The clerk's return is substantially the same, but it appears from the testimony that he issued the writ and placed it in the hands of the sheriff for service about one-half an hour before the rule to show cause issued by this court was served upon him. Before issuing the writ he knew that proceedings had been instituted in this court to prohibit the issuance of the writ, and that the rule to show cause had been made, and had been informed that he was a party to the proceeding.

The nature of the writ of prohibition and the office it performs are very clearly stated by High on Extraordinary Remedies: He defines it as “an extraordinary judicial writ, issuing out of a court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested.” Section 762. And “it does not lie for grievances which may be redressed, in the ordinary course of judicial proceedings, by appeal or writ of error.” Ib. sec. 765. “If the inferior court has jurisdiction of the subject matter in a controversy, a mistaken exercise of that jurisdiction or of its acknowledged powers, will not justify a resort to the extraordinary remedy of prohibition.” Ib. sec. 767. “It is never allowed to usurp the functions of a writ of error or certiorari, and can never be employed as a process for the correction of errors of inferior tribunals.” Ib. sec. 772.

The county court of Boone county, under the law, could have issued to the applicant a dramshop license if the three mile act was repealed by the ““Downing law,” and this was a question for judicial determination. The circuit court possesses a superintending control over the county court. Sec. 1102, R. S., 1879. And that superintending control may be exercised by means of a mandamus or prohibition. State ex rel. Fitzpatrick v. Meyers, 80 Mo. 601. Whether the county court was authorized to grant a dramshop license for a saloon, within three miles of the State University, depended upon the effect of the “Downing law” upon the three mile act. If the “Downing law” repealed it, the county court had, and if not, it had not authority to grant the license. The circuit court in the mandamus proceeding had jurisdiction to determine that question, and that it erroneously decided it, if such should be our opinion, does not affect the jurisdiction of the court. Whenever a court errs in expounding a statute, it gives or denies a right, which it is not, strictly speaking, authorized to do; and in every case, with as much propriety as in this, it might be said that the court had no right to render the judgment entered. The question is not whether the court was authorized to render the judgment entered, but whether it had jurisdiction to enter any judgment at all.

In the case of State ex rel. Fitzpatrick v. Meyers, supra, the circuit court of Nodaway county rendered a judgment in a mandamus proceeding awarding a peremptory writ against the county judges commanding them to fix and assess the tax and issue to Fitzpatrick a dramshop license. The county court had refused the license, upon its construction of the “Downing law,” that it required a petition to be signed by two-thirds of the assessed taxpaying...