State ex rel. Sanks v. Johnson

• Decision Date: 11 October 1909
• Citation: 121 S.W. 780,138 Mo.App. 306
• Parties: STATE ex rel. JOHN H. SANKS, Relator, v. C. L. JOHNSON et al., Respondents
• Court: Missouri Court of Appeals

121 S.W. 780

138 Mo.App. 306

STATE ex rel. JOHN H. SANKS, Relator, v. C. L. JOHNSON et al., Respondents

Court of Appeals of Missouri, Springfield

October 11, 1909

Certiorari to the Texas County Court.

ORDER OF COUNTY COURT HIRING OUT PRISONER SET ASIDE.

Dooley Hiett & Millard and Samuel J. Salyer for relator.

(1) The county court, under section 1791, Revised Statutes 1899, has a right to provide for the employment of all prisoners who are convicted for a misdemeanor and are sentenced to imprisonment in the county jail or committed to jail for the non-payment of a fine, but it exceeded its authorized powers when it made the order hiring Pipkin to Starns and discharging him from the custody of the sheriff and jailer of Texas county. Secs. 1792, 1793, 2384, 1791, 2686, 2685, R. S 1899; State ex rel. v. Simmons, 112 Mo.App. 537. (2) Certiorari is the appropriate remedy. State ex rel. v Smith, 176 Mo. 99; State ex rel. v. Dowling, 50 Mo. 136; 4 Encyc. Plead. and Prac., p. 91; State ex rel. v. Switzler, 143 Mo. 310; State ex rel. v. Guinotte, 156 Mo. 527. (3) Certiorari is the proper remedy, although writ of error or appeal may be had when writ of error or appeal, in point of promptness or completeness, would not afford an adequate remedy for the excess of jurisdiction or the exercise of unauthorized powers. 4 Encyc. of Plead. and Prac., pp. 36, 55; State ex rel. v. Guinotte, 156 Mo. 526; State ex rel. v. Dowling, 50 Mo. 136. (4) Under the common law the writ of certiorari was granted as a matter of course and right on the application of the Attorney-General of England. 4 Encyc. of Plead. and Prac., pp. 33, 37. Prosecuting attorneys of our State exercise the powers of and take the place of the Attorney-General of England. State v. Ransberger, 42 Mo.App. 471; State v. Kelm, 79 Mo. 516; State v. Kyle, 166 Mo. 303. Hence, when application for the writ of certiorari is made by the Attorney-General or prosecuting attorney of this State, it goes as a matter of course and of right. State ex rel. v. Dobson, 135 Mo. l. c. 19. (5) This Court of Appeals has original jurisdiction to issue writs of habeas corpus, quo warranto, mandamus, certiorari, and all other remedial writs and to hear and determine the same, and to have a superintending control over all inferior courts of record in the counties of its district. State Constitution, section 12, article 6; Amendment to State Constitution, 1884, section 4; section 1598, R. S. 1899; State ex rel. v. Allen, 45 Mo.App. 551; School District v. Burris, 84 Mo.App. 654. (6) The fact that Pipkin was sentenced to three months' imprisonment in the county jail instead of being sent to the penitentiary, does not reduce his offense from a felony to a misdemeanor. Section 2393, R. S. 1899; State v. Clayton, 100 Mo. 516; State ex rel. v. Foster, 187 Mo. 603, 609; State v. Bond, 191 Mo. 566.

Lamar & Lamar for respondents.

(1) The Court of Appeals is without jurisdiction to take any action whatever in the premises, for the Supreme Court has exclusive appellate jurisdiction in felony cases and all collateral matters arising therefrom. The Court of Appeals cannot under or by original writs, broaden or enlarge their jurisdiction. State ex rel. v. Ganzhorn, 52 Mo.App. 224; Railway v. McGregor, 53 Mo.App. 368; State ex rel. v. Southard, 61 Mo.App. 296; State ex rel. v. Rombauer, 101 Mo. 506; State ex rel. v. Harter, 188 Mo. 527; State ex rel. v. Nortoni, 201 Mo. 23-30, inclusive; Rule 30, St. Louis Court of Appeals. (2) The circuit court possesses ample authority and unquestioned jurisdiction in this particular matter, and application should be made to it. Not only the issuing of a writ of certiorari is a matter in the discretion of the court, but it is an extraordinary writ issued only when an appeal or writ of error cannot be heard, and it is the settled rule in Missouri that it will be denied by an appellate court when it appears that the circuit court has the power to issue the writ, unless the question is one of extraordinary importance and of great magnitude. State ex rel. v. Walbridge, 116 Mo. 656; Owens v. Andrew County, 49 Mo. 372; State ex rel. v. Jones, 142 Mo. 354; State ex rel. v. Wilson, 90 Mo.App. 154; State ex rel. v. Green, 1 Mo.App. 226. (3) Certiorari is an extraordinary remedy and will not be granted where an appeal or writ of error will lie to review the decision of the action complained of. 6 Cyc., pp. 738, 742; 4 Ency. Pl., pp. 50, 72; State ex rel. v. Ayers, 116 Mo.App. 90; State ex rel. v. Edwards, 104 Mo. 125; State ex rel. v. Reynolds, 190 Mo. 589; State ex rel. v. Shelton, 154 Mo. 670; Moore v. Bailey, 8 Mo.App. 159. (4) If the action of the county court herein is a judicial act, then an appeal lies direct to the circuit court. R. S. 1899, sec. 1788; Fisher v. Anderson, 101 Mo. 459; State ex rel. v. Marshall, 82 Mo. 484. (5) If the action of the county court here was ministerial and not judicial, then certiorari will not lie because this writ will only issue to review judicial acts. 6 Cyc., p. 753b; State ex rel. v. Harrison, 141 Mo. 12; Saline County v. Thompson, 45 Mo. 52; Phelps County v. Bishop, 46 Mo. 68; State ex rel. v. Reynolds, 190 Mo. 578 and 588. (6) Certiorari brings up only the record of the tribunal to which it is addressed and facts appearing upon the face of the record proper are all that are before the Court for consideration. State ex rel. v. Cauthorn, 40 Mo. 94; State ex rel. v. Railroad, 190 Mo. 588; State ex rel. v. Casey, 210 Mo. 246; Ward v. Gentry County, 135 Mo. 309. (7) To construe section 1791 and the other provision of the statute as not authorizing the county courts to take the prisoners from the custody of the sheriff or jailer will absolutely nullify the provisions of the statute for working prisoners under the order of the county court, for the reason that no provision is made to compensate the sheriff, his deputy or the jailer for guarding prisoners while at work nor has the county court any power or control to require the sheriff, his deputy or the jailer to go upon the roads or streets and guard prisoners.

OPINION

NIXON, P. J.

This is an action by the State of Missouri, at the relation of John H. Sanks, prosecuting attorney of Texas county, against the Texas County Court.

The record in this case shows that at the May, 1908, term of the Texas County Circuit Court, one Robert Pipkin was tried and convicted on the charge of having had sexual intercourse with one Ellen Bailey, an unmarried female of previous chaste character between the ages of fourteen and eighteen years, and his punishment was by the jury assessed at three months' imprisonment in the county jail of said county and that he pay the costs of said prosecution amounting to $ 306.30; that on appeal to the Supreme Court of the State of Missouri, the judgment against him was affirmed. Subsequently, a capias execution was duly issued from the Texas Circuit Court to the sheriff of that county, directing him to apprehend and confine the said Robert Pipkin in the Texas county jail for a term of three months and to collect the amount of costs taxed in said case. Said Pipkin was apprehended and committed to the common jail of Texas county to serve out his sentence.

On the 2d day of August, the county court of Texas county entered into a contract and agreement of record with one Edward Starns, a brother-in-law of the said Pipkin, conditioned that if the said Starns would pay the county court the sum of $ 308--the amount of the costs in said case--the county court would make an order releasing the said Robert Pipkin from the custody of the sheriff of said county and deliver him to the said Edward Starns. The order of the county court is as follows:

"In the Matter of Robert Pipkin.

"Whereas, Robert Pipkin has heretofore been convicted of a misdemeanor and his punishment assessed at three months in the county jail, and whereas, Edward Starns has offered to the court to employ said Robert Pipkin and has offered to the court the sum of $ 308.00 for the work and services of the said Robert Pipkin for the term of three months.

"It is hereby ordered by the court that the services of the said Robert Pipkin be let to the said Edward Starns for the term of three months and that the said Robert Pipkin is hereby ordered turned over to the custody of the said Edward Starns to remain in his custody, at the call of this court, for the term of three months from this date.

"Now comes the said Edward Starns and files his bond in the sum of three hundred and eight ($ 308.00) dollars, as is above provided, which is by the court approved, which bond is as follows:

"BOND.

"Whereas, Robert Pipkin has been convicted of a misdemeanor and his punishment assessed at three months in the county jail, and whereas, he has been sentenced to said term, and whereas, his service has been let to and he has been awarded to the custody of Edward Starns for three months, for the sum of $ 308.

"Now, therefore, know all men by these presents, that we the undersigned, Edward Starns as principal and as sureties, are held and firmly bound unto the county of Texas in the sum of three hundred and eight ($ 308.00) dollars.

"The conditions of the above bond are such that if the said Edward Starns shall pay to the county of Texas on or before three months from this date and shall have the body of the said Robert Pipkin when and where this court may require, then the above obligation to be void, otherwise to remain in full force.

"ED. STARNS, (Seal)

"M. F. PIPKIN, (Seal)

"P. W. GROCE, (Seal)

"ROBT. LAMAR, (Seal)

"Approved this August 2, 1909.

"C. L. JOHNSON, P. J. Co. Court."

Afterward on the 4th day of August, 1909, the sheriff of Texas county, James W. Cantrell, in obedience to the order of the county court,...