State ex rel. York v. Locker

• Decision Date: 22 December 1915
• Parties: THE STATE ex rel. CHARLES M. YORK, Assistant Prosecuting Attorney of Schuyler County, v. J. S. LOCKER, Judge of Probate Court
• Court: Missouri Supreme Court

181 S.W. 1001

266 Mo. 384

THE STATE ex rel. CHARLES M. YORK, Assistant Prosecuting Attorney of Schuyler County, v. J. S. LOCKER, Judge of Probate Court

Supreme Court of Missouri

December 22, 1915

Writ granted.

Walter Higbee and Charles M. York for relator; Higbee & Mills of counsel.

(1) The probate court or the judge thereof has no jurisdiction to issue a writ of habeas corpus. Secs. 1 and 34, art. 6 Constitution; State ex rel. v. Tincher, 258 Mo. 15; State ex rel. v. Woodson, 161 Mo. 444; Johnson v. Railroad, 259 Mo. 544; Turner v. Anderson, 236 Mo. 529; State ex rel. v. Nast, 209 Mo. 719; 11 Cyc. 706, c; Harding v. State, 126 S.W. 91 (Ark) ; Finn v. Walsh, 121 N.W. (N. D.) 766, syl. 3. (2) The judge of the circuit court of Scotland, where petitioners were confined, had exclusive jurisdiction to issue the writ of habeas, there being no allegation in the petition that he was absent from the county. Sec. 2509, R. S. 1909; Ex parte Gaume, 162 Mo. 390; Ex parte Shoffner, 173 Mo.App. 403.

Fogle & Fogle for respondent.

(1) The probate court or judge in vacation had jurisdiction to issue the writ of habeas corpus. Sec. 2441, R. S. 1909; State v. Millsaps, 69 Mo. 359; State ex rel. v Tincher, 258 Mo. 19; State v. Wilson, 175 S.W 603. (2) Certiorari will lie from the Supreme Court to review the proceedings in a habeas corpus case pending the circuit court, and before those proceedings have culminated in a trial, order or judgment; and to inquire into an absence excess or abuse of jurisdiction. State ex rel. v. Wurdeman, 254 Mo. 569. (3) Prohibition being an extraordinary writ cannot be resorted to when the ordinary and usual remedies provided by law, such as certiorari or other modes of review, are available. Mastin v. Sloan, 98 Mo. 252; State v. Klein, 116 Mo. 259; State v. Bowerman, 40 Mo.App. 576; Delaney v. Police Court, 167 Mo. 679. (4) Application for the writ of prohibition is premature until exception has been taken to the jurisdiction of the lower court and overruled and will be refused if this has not been done, for it is invariably presumed that courts will give to parties the relief to which they show themselves entitled. State v. Gill, 137 Mo. 681; State ex rel. v. Stobie, 194 Mo. 14; State v. Fox, 85 Mo. 61; State v. Withrow, 108 Mo. 1; State v. Anthony, 65 Mo.App. 543.

OPINION

In Banc.

Prohibition.

GRAVES J.

-- To give the respondent the benefit of all doubt, we adopt the statement of facts presented here by his able counsel. In the view that we now have, and long since have had, of the law, this statement of facts will suffice. It reads:

"Jacob Gardner, Ivan Huff and Noble Bass were arrested by the sheriff of Schuyler county, on the complaint of Rosa Hoxie, charging them with the crime of rape. They were brought before the justice who issued the warrants, and their preliminary hearing was set for the 17th day of June, 1915. On said day the said sheriff produced them before the said justice, and indorsed his return on the said warrants and delivered them back to the said justice. The accused then filed with the said justice, before the commencement of the said hearing, their affidavit for a change of venue to some other township. Said justice forthwith awarded a change of venue and ordered said cause sent to John Minear for hearing before him on the 27th day of June, 1915, and then and there issued and delivered to said sheriff, as jailor of said county, a commitment for said accused, and said sheriff took said accused to the jail of Scotland county, where he had been confining them on account of the insufficiency and insecurity of the jail of Schuyler county. Said accused were never taken before said John Minear, and the transcript of the other justice, together with the papers in the cause, was not sent to nor filed with said John Minear until several days after the change of venue was awarded as aforesaid.

"Eventually, the said John Minear discovered that the 27th day of June was Sunday and he then served notice on the accused that he had set the 1st day of July for the hearing, thus adjourning said cause more than ten days without the knowledge or consent of the accused and contrary to the laws of Missouri.

"The accused then, on the 29th day of June, same being twelve days after the change of venue was awarded, applied to the probate judge of Schuyler county, in the absence of the circuit judge, for their discharge from custody, alleging that the said commitment so issued, and under which they were illegally restrained, was void and that they had not been accorded a hearing within the time fixed by law.

"The distinguished attorneys for the State contested the issuance of the writ of habeas corpus, but the probate judge, after hearing the arguments of counsel for both sides, issued the writ and delivered the same to said sheriff, and in compliance with said writ, said sheriff produced said accused before said judge and made and filed his return to said writ of habeas corpus on the 30th day of June, 1915. Then by agreement of counsel and on the request of the said accused the habeas corpus matter was set for trial on the 7th day of July, 1915. But the service of the provisional writ of prohibition being had, preceding said date, this matter thus stands in abeyance to this day.

"The accused, contending that the return of the warrants ended their force from that date, and that the said commitment was without any authority of law and void and of no force, now believe that they were entitled to their discharge at the time they filed their petition for the writ of habeas corpus; and they now contend that, inasmuch as the sheriff attached the writ of habeas corpus to his return to said writ and filed the same therewith, he is now holding the accused without any writ, process, precept or warrant of law, and they are therefore entitled to their liberty."

It should be added that as one ground for the application to this court for the writ of prohibition, it is charged that the probate courts of the State are without constitutional authority to issue writs of habeas corpus, and that therefore sections 2441 and 2442, Revised Statutes 1909, which purport to grant such authority are unconstitutional and void. In our judgment this contention is well founded, as we shall attempt to demonstrate, in the opinion to follow. Other grounds are urged, but if this be good, then the discussion of the others would be mere superfluity. This sufficiently states the case.

I. The question here involved is an interesting one. I first became interested in it in the course of my early practice. That sections 2441 and 2442, Revised Statutes 1909, grant to probate courts as courts of record, the power to grant writs of habeas corpus must be conceded. We have also statutes authorizing a probate court to grant a temporary injunction. [R. S. 1909, secs. 2512 and 2513.] In a series of cases of the Rich Hill Coal Mining Co. versus divers parties, temporary writs of injunction were granted by the probate court of Bates county and the cases certified to the circuit court of said county for trial upon the question of a permanent injunction. These temporary writs were prepared by the local counsel for such Mining Company. In the circuit we moved to quash the preliminary injunctions on the sole ground that the probate court had no constitutional power to issue such a writ, and Hon. James H. Lay, then the circuit judge of the 29th circuit, sustained said motion. From that time on I have heard of no temporary injunction being granted by probate courts in that circuit. The question there involved is the question here involved. It is the simple question as to whether or not the Legislature can give to a court a power not contemplated by the constitutional provisions fixing the powers of such court.

It is a general rule that the Legislature can neither add to nor subtract from the constitutional powers of a court. In 11 Cyc. 706, it is said:

"The provisions of the Constitution may be such as to operate as an express restriction or limitation upon legislative authority in respect to matters of the character under consideration, and it is a general rule that the Legislature is powerless to interfere with the jurisdiction, functions, or judicial powers conferred by the Constitution upon a court, nor can it diminish, enlarge, transfer, or otherwise infringe upon the same, nor abolish, reorganize, divide, or consolidate such constitutional courts or judicial districts, especially so where the court has long been acquiesced in as permanent."

In State ex rel. Cave v. Tincher, 258 Mo. l. c. 1, 166 S.W. 1028, Walker, J., said:

"These cases, while aptly illustrative of the application of the general rule in regard to the limitations placed by the Constitution upon legislation, do not, except in the Redmond case (Redmond v. Railroad, 225 Mo. 721), have particular references to the jurisdiction of courts as defined by the organic law. The rule, however, was by clear implication approved in Vail v. Dinning, 44 Mo. 210 construing an act of the Legislature which authorized a contestor for the office of circuit judge to institute an original proceeding in the Supreme Court to determine the issue. Wagner, J., speaking for the court, said: 'In the first place, . . . the jurisdiction of this court is defined and limited by the Constitution. It has such powers and jurisdiction as the Constitution has conferred upon it -- no more, no less. It cannot shirk any duty imposed on it by the organic law, nor can it extend its powers to take cognizance of any matter not within the scope of its limited authority. The Legislature can neither add to nor diminish its rightful jurisdiction. That body can invest it with no original jurisdiction when it is not...