Wertheimer v. Mayor, Councilmen, & Citizens of Boonville

• Decision Date: 31 January 1860
• Citation: 29 Mo. 254
• Parties: WERTHEIMER, Defendant in Error, v. MAYOR, COUNCILMEN, AND CITIZENS OF BOONVILLE, Plaintiffs in Error.
• Court: Missouri Supreme Court

29 Mo. 254

WERTHEIMER, Defendant in Error,

v.MAYOR, COUNCILMEN, AND CITIZENS OF BOONVILLE, Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1860.

1. In cases arising under the ordinances of the city of Boonville in which the fines assessed do not exceed the sum of five dollars, the decision of the mayor is final; it cannot be reviewed on appeal or certiorari; nor can a writ of prohibition be resorted to to restrain the collection of the fine.

Error to Cooper Court of Common Pleas.

The facts sufficiently appear in the opinion of the court.

Stephens & Vest, for plaintiff in error.

I. Fresh fish are not wild game within the meaning of the ordinance.

II. This is not such a case as will warrant the issuing of a writ of prohibition. We have no statute regulating the remedy by prohibition. (See 1 Chitt. Pl. 444.) The suit will not lie to prevent a court from deciding erroneously, nor from enforcing an erroneous judgment. It can be sustained only for preventing usurpation of judicial power by a court which has no authority to decide the cause in which it assumes the right to act judicially. (See 3 Black. Comm. 112; Com. Dig. tit. Prohibition; 5 Bac. Abr. Prohibition; 2 Saunders, Prohibition; 2 H. Bl. 533; 3 Bouvier's Inst. 93; Arnold v. Shields, 5 Dana, 20; Washburn v. Phillips, 2 Metc. 296; 2 Hill, 367, 363; 7 Wend. 518.) The mayor of Boonville had jurisdiction in the case in which he was attempting to proceed. He imposed a fine for an alleged violation of a city ordinance. The mayor's construction of the ordinance may have been erroneous. He decided the case and exercised jurisdiction. (3 Pet. 206.) The Cooper court of common pleas, having no appellate jurisdiction or control over the mayor's court and no jurisdiction over the subject matter in controversy, had no right to issue a writ of prohibition. If any court could issue the writ, the circuit court alone could. It could not review the decision on appeal, or in any other way. A superior court can not issue a writ of prohibition unless it possesses jurisdiction over the subject matter in contest. (Bac. Abr. Prohibition; Reese v. Lawless, 4 Bibb, 394; 2 Chitt. Pr. 355; 19 Louis. 175; 12 Gratt. 17.) The court of common pleas is not a superior court to the mayor's court. They act in different spheres entirely. No appeal lies from the mayor's court to the court of common pleas. (See 4 Burr. 2034; 2 T. R. 473.)

Douglass & Hayden and Hicks, for defendant in error.

I. There is nothing in the record to show that any error has been committed by the court of common pleas. No ordinance is in evidence requiring fish to be sold at the markethouse. The judgment will be presumed to be correct. (18 Mo. 256; 24 Mo. 522; 16 Mo. 384; 9 Mo. 341, 816; 5 Mo. 522.) No question of law is saved. (19 Mo. 433.) There was no motion for a new trial. (11 Mo. 358, 623; 6 Mo. 162.) The court could not take judicial notice of the ordinances. (See 21 Mo. 112; 25 Mo. 567; 25 Mo. 580.) But upon the merits there is no error. Fish are wild game within the meaning of the ordinance, if there was any such ordinance. (Bac. Abr. tit. Game; 2 Kent, 348.) The purchase of it at any place other than the market-house was no violation of such ordinance. The mayor assumed a jurisdiction that did not belong to him. The writ of prohibition was properly issued. If fish are wild game, the mayor had no jurisdiction over the act of purchasing. He was properly restrainable by prohibition. (Bac. Abr. tit. Prohibition, p. 206-230; 2 Pet. 449; 1 Cond. Rep. 60; 77 Eng. Com. Law R. 696; Bull. N. P. 219; Sess. Acts, 1855, p. 75, 76.) The court of common pleas possesses the same powers as the circuit court. The objection to the jurisdiction was not made in the common pleas court and will not be heard here. (24 Mo. 411; 22 Mo. 402; 7 Mo. 211; 13 Mo. 4; 1 Mo. 515; 2 Mo. 171; 8 Mo. 59; R. C. 1855, p. 1300, § 33.) Not having filed a plea in bar, it is too late to plead the jurisdiction. (1 Chitt. Pl. 425; 2 Tuck. 254.)

SCOTT, Judge, delivered the opinion of the court.

This proceeding had its source in a writ of prohibition issued by the Cooper court of common pleas to the mayor of the city of Boonville and others, restraining them from collecting a fine imposed on the plaintiff Wertheimer by the said mayor for violating an ordinance of said city. The twenty-eighth section of the act incorporating the city of Boonville (Sess. Acts, 1839, p. 299) provides that the mayor and each justice of the peace within the city shall have jurisdiction of all cases arising under this act and under the ordinances of the city, subject however to an appeal or certiorari, in all cases above the sum of five dollars, to the circuit court of Cooper county; and such appeals and certioraris shall be granted and taken in the same manner as appeals and writs of certiorari are granted and taken from justices of the peace to the circuit courts. The act of February 13, 1847 (Sess. Acts, 1847, p. 185) confers on the mayor exclusive original jurisdiction over all cases arising under the act of incorporation and upon all ordinances of the city.

The following are two sections of an ordinance passed by the city of Boonville for the regulation of the markets of said city: “Sec. 11. Any person who shall purchase during market hours, at any other place in the city than at the market-house, any article required to be sold at the market place, shall, upon conviction, forfeit and pay a fine of five dollars. Sec. 22. Nothing in this ordinance shall be so construed as to prevent any farmer or raiser, or any person or firm who packs beef or pork, from selling his meat by the quarter, or from selling his bacon hams, shoulders or sides, or from selling spare ribs or sausage meat in the winter time, nor so construed as to prohibit the selling of venison or wild game.”

Under these ordinances the plaintiff was fined five dollars for purchasing, out of the market house, during market hours, fresh fish. He applied for an appeal, which was refused by the mayor, as by the charter an appeal did not lie unless the fine was over five dollars. The plaintiff maintaining that fresh fish was wild game within the meaning of the ordinance, and that therefore the mayor had exceeded his jurisdiction in fining him for purchasing fresh fish, as such articles were expressly excepted from the ordinance, and applied to and obtained from the Cooper court of common pleas a writ of prohibition on the mayor restraining him from collecting the said fine. On this order or judgment a writ of error has been sued out from this court.

Many reasons were urged why ...