State v. Rombauer

• Decision Date: 23 March 1891
• Parties: STATE ex rel. MACKLIN v. ROMBAUER et al.
• Court: Missouri Supreme Court

15 S.W. 850

104 Mo. 619

STATE ex rel. MACKLIN v. ROMBAUER et al.

Supreme Court of Missouri, Division No. 1.

March 23, 1891.

PROHIBITION — ORDER TO SHOW CAUSE — ISSUANCE IN VACATION.

1. Under the constitution and statutes of Missouri, a judge of the supreme court, in vacation, may issue a rule to show cause to the court, at its next term, why a writ of prohibition should not be granted. BLACK, J., dissenting.

2. Nature and uses of the writ of prohibition discussed.

3. The effects and consequences of any proposed interpretation of a law may be properly considered, to ascertain the probable intention of the law-makers.

4. A grant of jurisdiction implies the necessary and usual incidental powers essential to make the chief grant effective.

A verified petition for a writ of prohibition was presented by relator to one of the judges of the supreme court, during vacation thereof, upon consideration of which the judge made an order upon defendants, composing the St. Louis court of appeals, to appear at the opening of the next ensuing term of the supreme court to show cause why the writ prayed should not be issued. On the opening of the following term, a motion was made to quash the preliminary vacation order as being unauthorized by law. The petition for prohibition proceeded on the theory that the St. Louis court of appeals had no jurisdiction to entertain or adjudicate upon an original information in the nature of a quo warranto (then pending before it) against the present relator, the decision of which cause (as was alleged) involved a construction of the constitution of this state.

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

BARCLAY, J.

The duty has been assigned me of giving expression to our views on the question which this case presents, namely, whether a proceeding in prohibition may be begun during vacation by an order of one of the judges to defendants to show cause to the court (at its following session) why the writ should not be issued. The constitution confers original jurisdiction upon the supreme court to issue writs of prohibition, and to hear and determine the same, (article 6, § 3, Const. 1875, and Amend. 1884, § 8,) but no procedure for the exercise of such jurisdiction is prescribed by the fundamental law or by any statute whatever. Without a general review of the history of the writ, it may be well at this point to remark that under the system of jurisprudence from which ours is derived a prohibition could be obtained from the superior courts of common law in term-time, and from the court of chancery in vacation as well as in term. There is general unanimity among text-writers on this point. 2 Chit. Pr. pp. 355, 388, 406; Lloyd, Prohib. c. 9, § 3, p. 58; Heard's Shortt, Extr. Rem. 427; 1 Wood. Lect. 85, note e; 1 Madd. Ch. Pr. 12. This jurisdiction of chancery was expressly placed on the ground of necessity, and was exercised for the avowed purpose of preventing in this regard a failure of justice during the vacation of the law courts. It was so well recognized that the adjudications refer to it rather incidentally than directly, but the remarks of the judges clearly show that the power was unquestioned. Iveson v. Harris, (1802,) 7 Ves. 257, Lord ELDON; In re Bateman, (1870,) L. R. 9 Eq. 660; Saunderson v. Clagget, (1720,) 1 P. Wms. 663; Montgomery v. Blair, (1804,) 2 Schoales & L. 136, Lord REDESDALE; In re Foster, (1857,) 24 Beav. 428; Anon., (1718,) 1 P. Wms. 476. Such a writ was sometimes issued from chancery, returnable into one of the superior courts of common law, when the nature of the case appeared to require it. Blackborough v. Davis, (1701) 1 P. Wms. 43. It was a general maxim of English law that for every wrong there should be a remedy, (Broom, Leg. Max. 191;) and at a very early day it was expressly declared by the statute of Westminster 2 that "whensoever from thenceforth a writ shall be found in the chancery, and in a like case, falling under the same right, and requiring like remedy, no precedent of a writ can be produced, the clerks in chancery shall agree in forming a new one; and, if they cannot agree, it shall be adjourned till the next parliament, where a writ shall be framed by consent of the learned in the law, lest it happen for the future that the court of our lord the king be deficient in doing justice to the suitors." Later the same notion of the proper functions of courts embodied in the last lines of that statute found more positive expression in the language of Magna Charta: "To none will we sell, to none deny, to none delay, right or justice." During the prevalence of such conceptions of law it is not wonderful that the idea that such a necessary remedy as prohibition could lie in abeyance at any time never took shape. On the contrary, the writ was obtainable somewhere always, and the tendency of legislation in England has invariably been in the direction of increasing, rather than impairing, the facilities for its use. 1 Wm. IV. (1831,) c. 21; Petty Bag Act, 12 & 13 Vict. (1849,) c. 109; Amstell v. Lesser, (1885,) 16 Q. B. Div. 187. It played a very important part in the historic struggle of the English people to maintain the supremacy of the common law against the encroachments of jurisdiction on the part of the ecclesiastical courts, and was found extremely effective in keeping the latter within their constitutional limits. In the earliest authentic records of English precedents occur repeated illustrations of its employment for that purpose. To these facts probably may be traced the idea of its importance prevailing among English speaking people, which has taken shape in the western hemisphere in repeated constitutional assurances of its fixed place in jurisprudence, — declarations intended to secure to the citizens of these states the protection which it gave at the common law against possible usurpations of judicial authority.

Our own constitution, besides recognizing this writ, asserts in the bill of rights, following the lead of Magna Charta, that "the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property, or character, and that right and justice should be administered without sale, denial, or delay." Article 2, § 10, Const. 1875. Though we have no statute dealing directly with the remedy in question, nevertheless there are some general provisions of law which appear to cast some light on the subject of this discussion, and should be noted: "Sec. 3243. 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." Rev. St. 1889. "Sec. 8951. All writs and process issued by any judge or justice of the peace or other officer authorized to issue the same shall run in the name of the state of Missouri, and be subscribed by the officer issuing the same." Rev. St. 1889. From these sections it is evident that the legislative department supposed that judicial power (or at least so much thereof as might be necessary to lay a foundation for effective action later by the court in due course) might occasionally be lawfully exerted in vacation. This idea is yet more definitely expressed in statutes which plainly declare or imply that orders of injunction, (Id. § 5488,) writs of mandamus, (Id. § 6811,) supersedeas, (Id. § 2286,) and habeas corpus (Id. § 5346) may be issued in vacation by a single judge, though there is no express authority therefor in the constitution, which vests the judicial power in the "courts" as such. The statute relating to mandamus declares that "where any writ of mandamus shall be issued out of any court in this state, or by any judge thereof in vacation, directed and delivered to any person who, by law, is required to make return of such writ, such person shall make his return to the first writ of mandamus." Rev. St. 1889, § 6811. It will be noted at a glance that this language does not purport to confer authority on a single judge to issue an alternative writ in vacation. It refers to that authority merely by way of recital, clearly implying the existence of such power already. That section simply recognizes that existing power; and it has been expressly held, in a recent and unanimous opinion of this court, that the issuance of such a writ, by a single judge in vacation, is not beyond the constitutional grant of power to this "court" to "issue, hear, and determine" the writ of mandamus. State v. Weeks, (1887,) 93 Mo. 499, 6 S. W. Rep. 266. The grant of authority to courts in this state includes "matters of both law and equity." Article 6, § 1, Const. 1875. This court, therefore, in the exercise of original jurisdiction in prohibition, in the absence of any statute on the subject, may, and we think should, shape its proceedings in such a 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. Compare Wilcox v. Wilcox, (1856,) 14 N. Y. 575; Brown v. Snell, (1874,) 57 N. Y. 299; State v. Merry, (1833,) 2 Mo. 278. To do less would be to disregard the obvious purpose of the statute, which declares that "the supreme court, in addition to the powers conferred by the constitution, shall have power to direct the form of writs and process, not being contrary to or inconsistent with the laws in force for the time being." Rev. St. 1889, § 3278. This section has been the law since a very early day in Missouri, (Act Jan. 7, 1825, concerning "courts;" Rev. Laws 1825, p. 268, § 3; Rev. St. 1835, p. 155, § 7; Gen. St. 1865, p. 541, § 2;) and it may be instructive to mention further, in this connection, that during the existence of a separate chancery court (before its jurisdiction was merged in the present courts) it was provided that "the said superior court of chancery and circuit courts shall be...