State v. Wurdemann

• Decision Date: 07 April 1914
• Docket Number: No. 14,271.,14,271.
• Parties: STATE ex rel. LASHLY, Pros. Atty., v. WURDEMANN, Circuit Judge.
• Court: Missouri Court of Appeals

166 S.W. 348

183 Mo. App. 28

STATE ex rel. LASHLY, Pros. Atty., v. WURDEMANN, Circuit Judge.

No. 14,271.

St. Louis Court of Appeals. Missouri.

April 7, 1914.

1. DISTRICT AND PROSECUTING ATTORNEYS (§ 8)—RIGHT TO REPRESENT COUNTY IN GENERAL.

Under the direct provisions of Rev. St. 1909, § 1007, it is the duty of a prosecuting attorney to prosecute and defend all civil and criminal actions by or against the county, and under the statute the offices of judge of the county court and prosecuting attorney are separate, and neither is subservient to the other, and therefore the right of the prosecuting attorney to appear in and control actions to which the county is a party cannot be superseded or ignored by the county court.

2. DISTRICT AND PROSECUTING ATTORNEYS (§ 8)—RIGHT TO REPRESENT COUNTY—MANDAMUS AGAINST COUNTY COURT JUDGES.

Under Rev. St. 1909, § 1008, providing that the prosecuting attorney shall prosecute or defend "all civil suits in which the county is interested," a county was interested in a mandamus suit against the judges of the county court to compel them to hear and determine an application for a dramshop license, so as to entitle the prosecuting attorney to appear in and control such suit, as the matter of dramshop licenses affects the county's revenue, and because the sale of intoxicating liquors is of special interest to the county.

3. DISTRICT AND PROSECUTING ATTORNEYS (§ 8)—CONSTRUCTION—CONSTRUING STATUTES TOGETHER.

Rev. St. 1909, §§ 1007, 1008, both pertaining to the duties of prosecuting attorneys, being in pari materia, are to be read together in determining the duties and rights of prosecuting attorneys.

4. INTOXICATING LIQUORS (§ 6)—POWER TO CONTROL TRAFFIC—STATES.

The state may exercise its police power with respect to the sale of intoxicating liquors, because of its tendency to deprave public morals.

5. DISTRICT AND PROSECUTING ATTORNEYS (§ 8)—RIGHT TO REPRESENT COUNTY—MANDAMUS AGAINST COUNTY COURT JUDGES.

A writ of mandamus to compel the judges of the county court to hear and determine an application for a dramshop license is not purely personal, but reaches the office, so that the county had an interest in a suit for such a writ, which under Rev. St. 1909, § 1008, providing that the prosecuting attorney shall prosecute or defend "all civil suits in which the county is interested," entitled the prosecuting attorney to appear in and control such suit in behalf of the county.

6. COURTS (§ 231)—APPELLATE COURTS—MISSOURI —CONSTITUTIONAL QUESTIONS.

The Court of Appeals was not deprived of jurisdiction of a suit for mandamus to compel the district court to allow relator to appear as prosecuting attorney in a mandamus suit against the judges of the county court of such county, because a constitutional question was raised in the return of such judges, as the only question to be determined was whether the prosecuting attorney was entitled to appear in such suit, and did not involve its merits.

7. COURTS (§ 231)—APPELLATE COURTS—MISSOURI —CONSTITUTIONAL QUESTIONS.

Where the county judges, in making their return to a writ of mandamus, excluded the prosecuting attorney, who was the proper officer to set forth the interests of the county, a constitutional question raised therein is not to be deemed within the record, in a suit for mandamus to enforce the prosecuting attorney's right to appear in and control such suit, so as to deprive the Court of Appeals of jurisdiction thereof.

8. MANDAMUS (§ 160) — PROCEEDINGS — AMENDMENT OF ALTERNATIVE WRIT.

Where an alternative writ of mandamus is broader than the law warrants, it may be amended, and the peremptory writ awarded for so much of the relief as is proper.

Reynolds, P. J., dissenting.

Original petition for mandamus by the State, on the relation of Arthur V. Lashly, Prosecuting Attorney of St. Louis County, against Gustavus A. Wurdemann, to compel respondent, as Judge of the Circuit Court of said County, Division No. 2, to allow relator to appear in and control a certain mandamus suit pending in said court against the judges of the county court of said county. Case certified to Supreme Court.

Arthur V. Lashly, Pros. Atty., and George Barnett, Asst. Pros. Atty., both of Clayton, and E. R. Chappell, Asst. Pros. Atty., of St. Louis, for relator. Sam D. Hodgdon, J. C. Kiskaddon, R. H. Stevens, and F. E. Mueller, all of Clayton, for respondent.

NORTONI, J.

This is a proceeding in mandamus. The alternative writ issued in virtue of the original power of this court in that behalf provided. The relator is the prosecuting attorney of St. Louis county, duly elected and qualified. The respondent is judge of the circuit court of the same county and presides in division No. 2 of that tribunal. The question for consideration relates to, and the writ is invoked with a view of vindicating, the right of the prosecuting attorney to appear in the circuit court and defend a suit in which the county is interested. The relevant facts out of which the controversy arises are as follows:

It appears that one Hornberg presented to the county court of St. Louis county his application for a dramshop license in proper time and in due form and the county court declined to consider or act upon it; that thereafter, on the same day, Hornberg sued out an alternative writ of mandamus against the judges of the county court, John Wiethaupt, William Buermann, and Albert Wilmas, commanding them to appear in the circuit court, division No. 2, and show cause, if any they had, why they, as judges of the county court, should not proceed and act upon the petition of Hornberg for a dramshop license. To this mandamus proceeding so instituted in division No. 2 of the circuit court over which the respondent here, Judge Wurdemann, presides, the respondents in that proceeding— that is, the judges of the county court, Wiethaupt, Buermann, and Wilmas—made their return in writing through counsel other than relator, the prosecuting attorney of the county. Upon the coming in of the return of the judges of the county court in that case, relator, prosecuting attorney, appeared and moved the circuit court to permit him to assume control of the defense in the matter on the ground that it was one in which the county was interested, and that, therefore, the statute made it incumbent upon him to do so. This motion and request the court denied as though it were competent for the county judges to exclude the prosecuting attorney with respect to the matter of the defense of that case and employ other counsel to control and manage it. It is in assertion of his right to control and manage the defense of the mandamus suit pending in the circuit court against the judges of the county court with respect to the subject-matter of the application of Hornberg for a dramshop license that the prosecuting attorney, as relator, sued out the writ of mandamus here involved, and it is insisted the respondent, as judge of the circuit court, denied to him a clear legal right in refusing to permit the prosecuting attorney to assume control and manage the defense of that case.

In disposing of the question in judgment, it is essential to consider the relevant sections of the statute prescribing the duties of the prosecuting attorney, and to consider, too, the interests involved in the mandamus suit pending in the circuit court against the judges of the county court of St. Louis county. It is to be said, first, that under the statutes both the judges of the county court and the prosecuting attorney are elected by the people of the county and with a view of serving its inhabitants in the discharge of the duties annexed by law to the respective offices of county court and prosecuting attorney. The office of the county court and of the prosecuting attorney are, of course, separate and independent and neither is necessarily subservient to the other. The county court consists of three judges, elected by the people; but its members are not required to be learned in the law, while one of the qualifications prescribed for the prosecuting attorney is that he shall be so learned. By statute certain judicial duties and certain other ministerial and administrative duties are committed to the county court while other statutes commit certain duties which appertain to the profession of a lawyer to the prosecuting attorney as the law officer of the county. In respect of the latter, sections 1007 and 1008, R. S. 1909, are to be here considered.

"The prosecuting attorneys shall commence and prosecute all civil and criminal actions in their respective counties in which the county or state may be concerned, defend all suits against the state or county, and prosecute forfeited recognizances and actions for the recovery of debts, fines, penalties and forfeitures accruing to the state or county; and in all cases, civil and criminal, in which changes of venue may be granted, it shall be his duty to follow and prosecute or defend, as the case may be, all said causes, for which, in addition to the fees now allowed by law, he shall receive his actual expenses. When any criminal case shall be taken to the courts of appeals by appeal or writ of error, it shall be their duty to represent the state in such case in said courts, and make out and cause to be printed, at the expense of the county, and in cities of over 300,000 inhabitants, by the city, all necessary abstracts of record and briefs, and if necessary appear in said court in person, or shall employ some attorney at their own expense to represent the state in such courts, and for their services shall receive such compensation as may be proper, not to exceed twenty-five dollars for each case, and necessary traveling expenses, to be audited and paid as other claims are audited and paid by the county court of such county and in such cities by the proper authorities of the city." (Section 1007, R. S. 1909.)

"He shall prosecute or defend, as the case may require, all civil suits in...