21 Mo. App. 267 | Mo. Ct. App. | 1886
delivered the opinion of the court.
The petitioner was convicted in the police court of the city of St. Louis, of the offence of maintaining a cow .stable and convenience for dairy purposes in a certain block of the city, without first having obtained the consent in writing of a majority of the owners of property in the block, as required by an ordinance of the city, and was adjudged to pay a fine of fifty dollars. The city marshal, having found no property on which to levy an execution for the fine, and the petitioner having pointed -out none, has taken his body for the purpose of committing him to the work house in execution. To be discharged from this custody, the petitioner has sued out
Unless,, then, we are prepared to overrule Ex parte Bowler, we must hold that the petitioner is not entitled to relief in this proceeding. We are not prepared to overrule that case, and the able opinion written by-Judge Bake well in that case relieves us of the necessity of restating, at much length, our reasons for this conclusion. We do not place our decision upon want of jurisdiction ■to pass upon constitutional questions in proceedings by habeas corpus. Undoubtedly we have such jurisdiction, nonsidering the word jurisdiction in the mere sense of judicial power. Every court has, and must have, such jurisdiction ; and in many such proceedings the exigency .of the case may be such as to require its exercise. The law under which the prisoner is held may be placed before the eyes of the judge side by side with the constitution, and he may be obliged to choose between the two .and to say upon the obligation of his official oath that the law conflicts with the constitution, and hence is invalid. We do not question, the decision of the Kansas City Court of Appeals in Ex Parte McDonald (19 Mo. App. 370), in so far as it holds that we have such a jurisdiction. We place our decision upon the obvious impropriety of ■exercising such a jurisdiction in such a case as the present. We content ourselves with stating the general rule, that the writ of habeas corpus, where used, as in
But this case could not come to us in the regular exercise of our appellate jurisdiction, because the city of St. Louis, which is a municipal sub-division of the state, within the meaning of the constitutional provision conferring and regulating our jurisdiction, is a party. An appeal from the police court would regularly lie to the court of criminal correction, and from that court to the supreme •court; and such appeals might have been prosecuted by the petitioner in this case.
If, then, we' were to enter upon the examination of the question upon which we are asked to discharge this prisoner, we should decide under the exigency of a writ, the hearing of which is required by the statute to be both speedy and summary ; a question of great importance and difficulty, which we have no jurisdiction to decide as .a court of appeals. Our decision would not be subject to review, and if we should decide the question against the ■city,- we should decide as a finality a question, the final decision of which, in the ordinary course of justice, is vested in the supreme court alone. But our decision would side-track the case, so to speak, and prevent it from getting to the supreme court. The very fact that in this state of the law relating to the writ of habeas corpus, we have jurisdiction to render such a decision, is the reason why the jurisdiction should not bé exercised. If we should decide this question against the city and erroneously, our order discharging the prisoner would be a final adjudication in his favor in the particular case. He could not be re-arrested under the same judgment, and no judicial power could call our power to account.
The fact that the supreme court may exercise such a jurisdiction, furnishes no reason why we should exercise it; because that court has exclusive jurisdiction as a court of appeals to decide constitutional questions; the constitution has made it the sole tribunal for the final decision of such questions ; and, hence, if it choose in original proceedings by habeas corpus to exercise such a jurisdiction, no great confusion or inconvenience results. But the exercise of such a jurisdiction by a limited appellate court, possessing the narrow jurisdiction which we possess, would degrade this most beneficial writ from its true office of furnishing a speedy and summary relief to persons held in custody in plain cases of illegality or want of jurisdiction. Thus used, the writ would not deserve the pre-eminent title of the “Writ of Liberty,” but would rather deserve to be called the “Writ of Anarchy.” Such a use of it we decline to make.
It is the order that the petitioner be remanded to custody.