The State ex rel. McNamee v. Stobie

• Decision Date: 26 February 1906
• Parties: THE STATE ex rel. McNAMEE et al. v. STOBIE et al
• Court: Missouri Supreme Court

92 S.W. 191

194 Mo. 14

THE STATE ex rel. McNAMEE et al. v. STOBIE et al

Supreme Court of Missouri

February 26, 1906

Demurrer to petition sustained.

Herbert S. Hadley, Attorney-General, and W. M. Williams for relators.

(1) (a) It stands confessed that the object and purpose of the proceedings before Justice Stobie were not to punish relators for a trespass upon the property of the Delmar Jockey Club or to hold them to trial for the commission of an alleged misdemeanor, in unclasping or throwing down the chain across the entrance to said grounds, but that said proceedings were begun and prosecuted "to protect from arrest persons engaged upon said Delmar race track in violating the act of the General Assembly of the State of Missouri, approved March 21, 1905, to prohibit bookmaking and pool selling, and to prescribe a penalty therefor." (b) It is a grievous abuse of judicial power, and an unwarranted and unlawful exercise of authority, and in excess of his rightful jurisdiction, for a justice of the peace to issue a warrant for officers or citizens, in order to prevent them from arresting criminals and to enable such criminals to continue in the commission of felonies without interference or molestation. Fellows v. Goodman, 49 Mo. 62; Dougherty v. Snider, 97 Mo.App. 501. (2) The writ of prohibition is as available to keep a court within the limits of its rightful power and authority in a particular case as it is to prevent the exercise of jurisdiction over a cause not given by the laws of the State to its consideration. While the main office of the writ is to keep the court, to which it is addressed, within the bounds of its jurisdiction yet it is sometimes used in the exercise of a proper discretion "to keep a court from doing what it has no lawful authority to do in a case the general nature of which is within its jurisdiction." State ex rel. v Sale, 188 Mo. 496; State ex rel. v. Elkin, 130 Mo. 105; State ex rel. v. Wear, 135 Mo. 256; State ex rel. v. Eby, 170 Mo. 497; State ex rel. v. Cline, 85 Mo.App. 628; Quimbo v. People, 20 N.Y. 541. (3) It stands admitted that at the time relators entered the Delmar race track persons were engaged in committing felonies therein. Members of the metropolitan police of the city of St. Louis had authority to arrest such persons in St. Louis county, and in entering the premises of the Delmar Jockey Club for that purpose, they committed no offense, and a prosecution based upon such act, was without authority of law. Sec. 14, Scheme and Charter, 2 R. S. 1899, p. 2467; 2 R. S. 1889, p. 2196, sec. 14; 2 R. S. 1889 p. 2199, sec. 18; 2 R. S. 1889, p. 2200, sec. 25; 2 R. S. 1889, p. 2201, sec. 35. (4) Section 14 of the Scheme for the separation of the city and county of St. Louis was neither repealed nor rendered inoperative by the act of 1899, establishing a metropolitan police in cities of 300,000 inhabitants or more, and prescribing the duties and powers of said police within such cities. The Constitution authorized the adoption of the plan of separation and declares that "such Scheme shall become the organic law of the county and city." There is no inconsistency between the general act of 1899 declaring the powers and duties of the police in cities of 300,000 inhabitants or more, and the special provision concerning the authority in St. Louis county of the metropolitan police of the city of St. Louis. State ex rel. v. St. Joseph's Convent, 116 Mo. 580; State v. Green, 87 Mo. 583; State ex rel. v. Field, 99 Mo. 352; Kansas City v. Marsh Oil Company, 140 Mo. 459. (5) It being confessed that persons were committing felonies within the enclosure of the Delmar Jockey Club, relators had the right as private citizens, without reference to their official positions, to arrest such persons, and in entering the enclosure for that purpose, they violated no law, and did not subject themselves to criminal prosecution therefor. State v. Albright, 144 Mo. 638; Burns v. Erben, 40 N.Y. 466; 2 Ency. Law (2 Ed.), 884-5. (6) The petition charges, and the demurrer confesses, that the justice issued the warrant for the arrest of the relators before any investigation of the facts by the prosecuting attorney, and without the filing of an information by that officer, notwithstanding the justice had no reason to believe the relators were likely to try to escape or avoid prosecution. The justice had no lawful authority or jurisdiction to issue a warrant against the relators under said circumstances. R. S. 1899, sec. 2752; McCaskey v. Garrett, 91 Mo.App. 354. (7) The affidavit filed with the justice of the peace, according to the allegations of the petition, did not show upon its face that relators had committed any offense under the laws of this State, and the justice had no lawful authority to issue a warrant based thereon. The affidavit was insufficient to bring the proceeding within section 4573, relied upon by the respondents as their authority for instituting and entertaining a criminal charge of trespass against the relators. State v. Grubb, 71 Mo.App. 214. (8) The Constitution gives this court superintending control over all the inferior tribunals of the State. The writ of prohibition is not confined to cases where there is an absolute want of jurisdiction, but it will lie where a court attempts to exercise its jurisdiction in a manner not authorized by law, and where an adequate remedy is not available by appeal or the usual and ordinary methods of procedure. It may be granted in the discretion of the court wherever the lower tribunal is proceeding in excess of its rightful authority and the other available remedies "are insufficient to prevent immediate injury or hardship to the party complaining, particularly in criminal cases." 16 Ency. Pl. and Pr. 1131; State ex rel. v. Eby, 170 Mo. 527; Quimbo v. People, 20 N.Y. 542; Yearian v. Speris, 10 P. 616.

Chester H. Krum, Henry S. Priest and Bond & Bond for respondents.

(1) Assuming that police officers of the metropolitan police force of St. Louis were present in St. Louis county, under orders from the Governor, as alleged in the information, no warrant of law is shown by the information for such presence and the averments of the information based on "orders" afford no justification for the forcible entry upon private premises, which the information shows was made by the relators. In no event would an order from the Governor afford an excuse for a trespass committed in St. Louis county by officers of the police force of the city of St. Louis. The information proceeds upon the false hypothesis, that under the conditions set out, the relators were justified by the order of the Governor. Obviously the theory is a mistaken one. (a) "The Governor shall take care that the laws are distributed and faithfully executed, and he shall be a conservator of the peace throughout the State." Constitution, art. 5, sec. 6. (b) "The Governor shall be commander-in-chief of the militia, . . . and may call out the same to execute the laws, suppress insurrection and repel invasion." Id. art. 5, sec. 7. (c) If it be conceded that "executed" is synonymous with "enforced," yet the mandate of the Constitution affords no warrant for the order of the Governor. The proposition involves consideration from two points of view: 1. The enforcement of the laws by the institution of ordinary proceedings. 2. The enforcement of the laws through the military arm of the State. But the order to descend upon the premises of the Jockey Club proceeded upon the hypothesis of invoking the "military arm" of the State, as it is called, without the semblance of an appeal to ordinary, lawful and legitimate process. The order was not made in furtherance of the laws; it was made in violation and defiance of the laws. The ukase of the Governor, set out in the information, is recognizable as a merely declamatory fulmination, but it is not akin to the exercise of a legitimate prerogative, or to the discharge of a lawful obligation. The order is bombastic to the extremity of bombast; but purporting to be hurled against a state of lawlessness, it can only evoke from the law-abiding, regret that such a diatribe could find birth in Missouri and it can excite nothing but ridicule of its magniloquent periods and preposterous assertions. If the police force is part of the "military arm," which defendants deny, the information does not state facts which justified the order. It does not appear that the civil authorities had been rendered powerless to execute the laws, by resistance which they were unable to overcome. Chapen v. Ferry, 3 Wash. 386; Green v. State, 15 Lea 708. Upon the assumption, therefore, and this is a false assumption, that the police are a part of the military arm of the State, the bouleversement of the Governor in taking care that the laws were faithfully executed by resorting in the first instance to force, merely "upon information having come" to him of violations of law in St. Louis county, would be essentially ludicrous were it not evidential of a total perversion of gubernatorial prerogative. Thus, at the outset, the information shows that the relators proceeded without warrant of law, when, as a part of the so-called "military arm" of the State, they trespassed upon private premises under orders of the Governor, who was taking care that the laws of Missouri should be "faithfully executed." Inter arma, silent leges. (2) The Metropolitan Police Force of the city of St. Louis is not, by the Scheme separating the city and county, given the same jurisdiction in the county as in the city. The information alleges that the entry upon the premises of the Jockey Club was made by the relators "acting by and under the order of the Governor of the State," and that they entered to arrest persons engaged in violating...