State v. Wurdeman

• Decision Date: 10 February 1914
• Citation: 163 S.W. 849,254 Mo. 561
• Parties: STATE ex rel. BARKER, Atty. Gen., v. WURDEMAN, Circuit Court Judge.
• Court: Missouri Supreme Court

163 S.W. 849

254 Mo. 561

STATE ex rel. BARKER, Atty. Gen., v. WURDEMAN, Circuit Court Judge.

Supreme Court of Missouri.

February 10, 1914.

1. CERTIORARI (§ 1)—OFFICE OF WRIT.

The office of the writ of certiorari in Missouri practice is the same as at common law; the courts being required to adopt the principles and usages in regard to the writ as developed under the common-law system if in other respects consistent with the existing statutes.

2. COURTS (§ 207) — RIGHT TO ISSUE — SUPREME COURT—SUPERINTENDING CONTROL— HABEAS CORPUS.

Under Const. art. 6, § 2, and Const. Amend. 1884, § 8, conferring on the Supreme Court general superintending control over all inferior courts, with the right to issue writs of certiorari, such writ may be issued by the Supreme Court to review proceedings of a circuit court on habeas corpus.

3. CERTIORARI (§ 5)—APPLICATION—ISSUANCE BY ATTORNEY GENERAL.

Where certiorari is applied for by the Attorney General, it goes as a matter of course in the first instance, provided there is apparent in the application any one of the following requisites: (a) Absence, excess, or abuse of jurisdiction; (b) absence of right of appeal; (c) lack of any other adequate remedy.

4. HABEAS CORPUS (§ 122)—SUSPENSION OF WRIT—DENIAL.

The denial of a writ of habeas corpus under a proper statement of facts is not a suspension of the same in violation of the constitutional prohibition prescribed by Const. art. 2, § 26, but is an exercise of a power conferred on the judiciary.

5. HABEAS CORPUS (§ 9)—RIGHT TO WRIT— RESTRAINT OF LIBERTY.

Whether a person is entitled to a writ of habeas corpus depends on the existence of an imprisonment or detention which deprives him of his privilege of going when and where he pleases, so that on the allegation of such restraint the court or judge, in the exercise of discretion, will determine whether the individual liberty of the petitioner and the demands of justice, if the petitioner is being held under a warrant or process of the court, authorizes the issuance of the writ.

6. HABEAS CORPUS (§ 32)—RIGHT TO WRIT— STATUTES—VALIDITY.

A writ of habeas corpus cannot lawfully be granted to determine the constitutionality of a statute other than that on which the petitioner has been arrested and is restrained.

7. HABEAS CORPUS (§ 58)—NOTICE TO PROSECUTING ATTORNEY—WAIVER.

Where the prosecuting attorney was actually cognizant of habeas corpus proceedings, they were not fatally defective because of want of formal notice thereof to him as prescribed by Rev. St. 1909, § 2509.

En Banc. Certiorari by the State, on relation of John T. Barker, Attorney General, against Gustavus A. Wurdeman, Judge of the Circuit Court. Certiorari allowed, and writ quashed.

John T. Barker, Atty. Gen., Ernest A. Green, Asst. Atty. Gen., Arthur V. Lashley, Pros. Atty., and George Barnett, Asst. Pros. Atty., both of Clayton, for relator. A. E. L. Gardner, of Clayton, for respondent.

WALKER, J.

This is a proceeding by certiorari instituted by the state at the relation of the Attorney General. The writ directed Gustavus A. Wurdeman, judge of division No. 2 of the circuit court of St. Louis county, respondent, to certify to this court a true copy of the record in a habeas corpus proceeding then pending before him, in which Henry L. Algermissen was petitioner and the sheriff of St. Louis county was defendant. In obedience thereto, the respondent filed in this court a complete copy of said record, and thereafter, on the 3d day of October, 1913, filed his motion to quash the writ of certiorari and to dismiss the cause.

The proceedings in the circuit court were as follows: On July 18, 1913, the sheriff of St. Louis county arrested Henry L. Algermissen charged with selling liquor without a license; the sale having been made in the view of the sheriff and another. Upon the arrival of the sheriff at the courthouse in Clayton with Algermissen in custody, about two hours after his arrest and before any formal charge had been preferred against him, a writ of habeas corpus was served on the sheriff commanding him to forthwith produce the body of Algermissen before the respondent and show by what legal authority he was holding him. The prosecuting attorney was not formally notified of the proceeding as required by section 2509, R. S. 1909, but had actual knowledge of same. In compliance with the court's order, the sheriff produced the body of Algermissen before the respondent, who at once admitted him to bail, conditioned upon his appearance before said circuit court in the habeas corpus proceedings on the 19th day of July, 1913, and ordered the sheriff on or before said day to make his return to the writ of habeas corpus. On July 18th, the prosecuting attorney filed an information in the office of the clerk of the circuit court, which was assigned to division No. 1 of said court, charging said Algermissen with selling liquor without a license, and immediately thereafter, on the same day, a capias was issued by the clerk and placed in the hands of the sheriff, commanding him to take Algermissen into custody. The sheriff arrested Algermissen under said capias, and the latter gave bond for his appearance in said division No. 1 of the circuit court at the next term, or upon the setting of the case, to answer the information so filed by the prosecuting attorney, and the sheriff again released him, and he is now at liberty. On July 19th, the sheriff filed his return to the writ of habeas corpus, in which he set out the following facts: That he had arrested Algermissen for a misdemeanor, viz., selling liquor without a license, committed in his view; that he had surrendered him to the custody of the court; that he had subsequently arrested him by virtue of a capias issued by the clerk of the circuit court for the same offense; and that thereafter Algermissen was admitted to bail, released, and was not then in his custody.

No answer was filed to this return, and no motion was made to discharge the prisoner. Immediately after the filing and reading of the return, in division No. 2 of said circuit court, before respondent as judge thereof, the court heard arguments by counsel of the respective parties as to the return, and as to whether the validity of the law creating the board of excise commissioners was in issue in the habeas corpus proceedings, and held that the validity of the law was in issue, and continued the further hearing until August 5, 1913. On July 29, 1913, the petition for a writ of certiorari was applied for and granted by this court.

I. Certiorari to Review Habeas Corpus. Under the Constitution of this state (article 6, § 3, and section 8, Amend. 1884, Const. Mo.), this court has a general superintending control over all inferior courts and as a means of maintaining same is clothed with power to issue writs of habeas corpus, quo warranto, certiorari, and other original remedial writs and to hear and determine same. At the common law the issuance of the writ of certiorari was authorized before the proceedings instituted had culminated in a trial, order, or judgment, and was based upon the absence or an excess or usurpation of jurisdiction on the part of the court from which the proceedings were removed. 1 Tidd. Pr. (4 Am. Ed.) 398; 6 Cyc. pp. 737, 750, 770.

Under our procedure the office of the writ is the same as at common law, and our courts are authorized to adopt the principles and usages in regard to the writ as developed under the common-law system, if in other respects consistent with the letter and spirit of existing statutes. State ex rel. Harrison, etc., v. Springer, 134 Mo. 212, 222, 35 S. W. 589; State ex rel. v. Walbridge, 69 Mo. App. 657, 666, and cases; State ex rel. Walbridge v. Valliant, 123 Mo. 525, 537, 27 S. W. 379, 28 S. W. 586; State ex rel. v. Smith, 101 Mo. 174, 14 S. W. 108.

Under this general superintending power conferred by the Constitution it has been held by this court that the writ will issue to review the proceedings in a habeas corpus case. State ex rel. v. Broaddus, 245 Mo. 123, 135, 149 S. W. 473; State ex rel. v. Dobson, 135 Mo. 1, 19, 36 S. W. 238. A like rule prevails elsewhere. Ex parte City Council of Montgomery (In re Knox) 64 Ala. 463, 468; McLaren v. Brown, 34 Ga. 583.

Where the writ is applied for, as it is here, by the chief law officer of the state, the Attorney General, it goes as a matter of course (State ex rel. v. Dobson, 135 Mo. 1, 19, 36 S. W. 238), in the first instance, provided there is apparent in the application any one of the following requisites: First, Absence, excess, or abuse of jurisdiction (State ex rel. v. Broaddus, 238 Mo. loc. cit. 204, 142 S. W. 340; State ex rel. v. Reynolds, 190 Mo. 578, 89 S. W. 877; State ex rel. Knox v. Selby, 133 Mo. App. 552, 113 S. W. 682); second, absence of the right of appeal (State ex rel. v. Broaddus, 245 Mo. loc. cit. 135, 149 S. W. 473; Ferguson v. Ferguson, 36 Mo. 197; Ex parte Jilz, 64 Mo. 205, 27 Am. Rep. 218; Weir v. Marley, 99 Mo. 484, 488, 12 S. W. 798, 6 L. R. A. 672); and, third, lack of any other adequate remedy (State ex rel. Iba v. Mosman, 231 Mo. 474, 133 S. W. 38; State ex rel. v. Guinotte, 156 Mo. 513, 57 S. W. 281, 50 L. R. A. 787; State ex rel. Sanks v. Johnson, 138 Mo. App. 306, 121 S. W. 780).

The petition for certiorari being sufficient for the submission of the issues involved, its reproduction here is unnecessary, and the duty devolves on us to examine the record to determine whether or not the habeas corpus proceeding was authorized. State ex rel. v. Broaddus, 245 Mo. loc. cit. 140, 149 S. W. 473. Petitioner's discharge on bail might pertinently be considered as a reason why the writ should not issue (Respublica v. Arnold, 3 Yeates [Pa.] 263; Commonwealth v. Robinson, 1 Serg. & R. [Pa.] 356; Hurd Hab. Corp. [2d Ed.] p. 201); but we have, in the interest of the petitioner, ignored this record fact, and have reviewed the case as though formal complaint had been filed...