State ex rel. Chick v. Davis, 273 Mo. 660

273 Mo. 660 | Mo. | 1918

BLAIR, J.

Prohibition. The statute (Sec. 4214, R. S. 1909) provides for five terms of the criminal court of Jackson County annually, “three of which shall be held in the City. of Kansas . . . and two at the City of Independence.” On November 3, 1917, the September term at Kansas City was adjourned to Monday, November 5, 1917, and continued thenceforward from day to day. November 5, 1917, was the day the statute fixed as the day for beginning the November term at Independence. Relator’s contention is that the arrival of the statutory time for beginning a term at Independence necessarily and, so to speak, automatically ended the September term at Kansas City and that proceedings thereafter at Kansas City as of such September term were “coram non jjudice and void.”

Courts can exercise judicial functions only when lawfully in session. [State ex rel. v. Ross, 118 Mo. l. c. 47 et seq.; Rhodes v. Bell, 230 Mo. l. c. 148; State v. Eaton, 191 Mo. l. c. 156.] A circuit court may not adjourn to a time at or after which its own next term in the same county begins] [State v. Jeffors, 64 Mo. l. c. 382.] In that case, as in others applying the principle, the court was held at but one place in the county. In this State the circuit court in one county may adjourn to the date or beyond the date fixed for the next term in another county of the circuit. [Sec. 3870, R. S. 1909; Lewin v. Dille, 17 Mo. l. c. 69; Samuels v. State, 3 Mo. l. c. 73 et seq.; State v. Pope, 110 Mo. App. 520.] In the Samuels case the principle of certain early decisions cited by relator from other states was rejected. It is discredited in most of the states of its origin, and the weight of authority and reason is against it. [Stirling v. Wagner, 4 Wyo. l. c. 25, et seq.; Borrego v. Territory, 8 N. M. 446; Gonzales v. Cunningham, 164 U. S. 626; Bidwell v. Love, 22 Okla. 549; State v. Pearson, 70 Kan. 901; In re Est. of Hunter, 84 Iowa, l. c. 392.] These decisions, though discussed in the briefs, have little to do with the question in this ease. That question is whether the Independence term is in such sense a term of the same court that the arrival of the day for it automatically terminates the next previous term at Kansas City. In the practice it has not been so regarded. In this court, though we are required in criminal cases to- scrutinize the record for error, causes have been heard and judgments affirmed on records disclosing that a term at Kansas City or Independence had overlapped one at the other place. This appears from our decisions. It has been true since the criminal court of Jackson County was established. Further, the act itself contains provisions apparently contemplating that court may be held at Kansas City and Independence at the same time. The court has two divisions and two judges. It is expressly provided that both divisions shall not be in session at Independence at the same time. [Sec. 4230, R. S. 1909.] The judge of Division Two “may hold court at Independence whenever, in the opinion of the judges . . .

and the prosecuting attorney, his assistance shall be needed for the holding of court at Independence.” [Sec. 4226, R. S. 1909.] From this it appears he may be called to hold court at ''Independence when his assistance is deemed necessary, but the .judge being assistéd is not to be engaged at that time at Independence, but elsewhere, if at all. If the statute means that court may be held at Independence and at Kansas City at the same time, relator’s proposition falls. Though the statute be not clear, its ambiguity opens the way for the rule that the actual construction given it for a long period by those charged with its administration, the supervising courts and the Legislature acquiescing therein, is regarded as strong evidence of its true meaning.

There is another consideration of first importance. The criminal court of Jackson County is a court of record (Sec. 4205, R. S. 1909) and, as stated, is composed of two divisions and two judges. [Sec. 4220, R. S. 1909.] Its clerk has separate offices and records at Independence and Kansas City (Sec. 4218, R. S. 1909) and writs may be issued from either office. Such writs are “returnable to the court held at the place at which said writ or other process is attested.” [Sec. 4219, R. S. 1909.] The transfer of cases from one division to another and from Independence to Kansas City, and vice versa, is governed by rules the statute authorizes the judges to make. [Sec. 4231, R. S. 1909.] It is obvious the relation between the term' at Independence and that at Kansas City is not the same, for example, as that between one circuit term and the next in Osage County (State v. Jeffers, supra), and that tins difference is one having an important relation to the question in this case. The terms at Kansas City and Independence are as distinct as terms of the circuit court in different counties. In Burnett v. Prince, 197 S. W. l. c. 244, this court was considering the relation between the divisions of the circuit court at Independence and Kansas City, and it was held that an act providing for additional terms of circuit court at Independence provided for such separate terms in the same way that terms are provided for in different counties in the same circuit, and that notice of the pendency of a suit in one place was not notice of the pendency of a suit in another. This rule applies as well to the terms of criminal court at Independence and at Kansas City. The terms at Independence and at Kansas City are, in a general sense, those of the same court. Yet a term at Iudependence does not, dn several respects, bear the same relation to the preceding term at Kansas City which is borne by one circuit term in a county to the preceding term at the same place in the same county. A simple continuance at Kansas City does not, by force of statute, take the case to Independence. The court at Independence has jurisdiction of the cases begun in it. That at Kansas City has jurisdiction of the cases begun in it. That rules may authorize transfers does not affect the question. These differences are important. If causes at Independence went by mere continuances or by adjournment to Kansas City, and vice versa, then relator’s contention would have to be upheld. In such circumstances the coming of one term must end the other or there would be two concurrent courts (or terms) having jurisdiction over the same cases and records at the same time, each capable of trying the canses and rendering judgment, and one capable of revoking orders binding on the other. The old term would continue the judge’s power over all the records. [Jaques v. Bridgport H. Rd. Co., 43 Conn. l. c. 34, 35.] This impossible alternative is a vital reason for the rule that the coming of one term of a court ends the preceding term of the same court. Such a situation could not arise in connection with the term at Independence and Kansas City. The case is not within this reason of the rule. The other reasons given for it, as far as they had been supposed to apply to courts held at different places, are disposed of in cases already cited.

The identical question in this case was presented in State v. Crilly, 69 Kan. l. c. 810, 811. In that case terms of the district court were provided for at Columbus and others at Galena. Indicted at Columbus, appellant was tried after a term at Galena had begun. The court held applicable the reasoning whereby it had. held valid adjourned terms in one county after the day for the beginning of a term in another county of the same district. The distinction between the facts before it (like those before us) and those in the Jaques ease, supra, was pointed out. The Connecticut court was cited as holding that “a court having regular terms and in which all cases are continued from one term to another in regular succession has no power to adjourn to a time beyond the commencement of another regular term of the same court in the same county, where both terms are of the same character.” The Kansas court held that the Columbus and Galena terms were not “of the same character” as that expression was used in the Jaques ease; that the cases untried at Galena were not continued to the term at Columbus and that one term was held to try cases begun at Columbus and the other to try cases begun at Galena. It held the Jaques case to be an authority for the conclusion it reached in its own decision. The same ruling on like facts was made in Tucker v. State, 10 Okla. Cr. 565. The situation in this case is, in legal effect, the same.

We are of opinion the difference between the terms at Independence and those at Kansas City is such as to take the case out of the reason of the rule (and therefore out of the rule) upon which relator relies. The preliminary rule is discharged.

All concur.