183 Mo. App. 28 | Mo. Ct. App. | 1914
Lead Opinion
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 an
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', E. 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,
‘ ‘ He shall prosecute or defend, as the case may require, all civil suits in which the county is interested, represent generally the county in all matters of law, investigate all claims against the county, draw all contracts relating to the business of the county, and shall give his opinion, without fee, in matters of law in which the county is interested, and in writing when demanded, to the county court, or any judge thereof, except in counties in which there may be a county counselor. He shall also attend and prosecute, on behalf of the State, all cases before justices of the peace, when the State is made a party thereto: Provided, county courts of any county in this State owning swamp or overflowed lands may employ special counsel or attorneys to represent said county or counties in prosecuting or defending any suit or suits by or against said county or counties for the recovery or preservation of any or all of said swamp or overflowed lands, and quitting the title of the said county or counties thereto, and to pay such special counsel or at
It is to be observed that section 1007, above copied, makes it the duty of the prosecuting attorney to defend all suits against the State or county, and, indeed, it is conceded in the instant case that, if the mandamus proceeding in the circuit court against the three judges of the county court were a suit against the county, no one could deny or gainsay the right of the prosecuting attorney to control and manage the defense therein. Touching this question, it is said in .the brief of respondent, “If an action is brought against the county, the prosecuting attorney can defend it and no county court has power to compel him to act otherwise than his judgment dictates. He can also institute an action for the county and in his conduct of the case he is absolutely independent of all control.” We quote this as a concession in the argument here, but it is said it does not apply to the instant case, in which the prosecuting attorney insists upon his right to appear.
In Kansas, the statutes concerning the county commissioners and the county attorney are similar to those which obtain with respect to our county courts and prosecuting attorney. The matter of a suit against the county of Leavenworth being under consideration in that State, the Supreme Court stated the doctrine precisely as we understand it, touching the question of the right of the county commissioners or the prosecuting attorney to control the case in court. Of this the court said, in Clough & Wheat v. Hart, 8 Kan. 487, 494:
“The county attorney is elected by the people of the county and for the county. He is the counsel for the county, and cannot be superseded or ignored by*35 the county commissioners. His retainer and employment is from higher authority than the county commissioners. The employment of a general attorney for the county is not by the law put into the hands of the county commissioners, but is put into the hands of the people themselves. The county attorney derives his authority from as high a source as the county commissioners do theirs, and it would be about as reasonable to say that the county attorney could employ another board of commissioners to transact the ordinary business of the county as it is to say that the county commissioners can employ another attorney to transact the ordinary legal business of the county. Both would be absurd. It is the duty of the county attorney to give legal advice to the county commissioners, and not theirs to furnish legal advice to or for him.”
The doctrine of that case was affirmed in Waters v. Trovillo, 47 Kan. 197, 27 Pac. Rep. 822, and has never been questioned, so far as we have been able to ascertain. Other courts either quote and approve it, or proceed in the same view on fundamental reasons, as will appear by reference to the following cases in point: Board of Comm’rs of Logan Co. v. Jones, 4 Okla. 341, 51 Pac. Rep. 565; Board of Comm’rs of Logan Co. v. State Capital Company, 16 Okla. 625, 86 Pac. Rep. 518; Brome v. Cuming County, 31 Neb. 362, 47 N. W. 1050; Clark & Grant v. Lyon County, 37 Ia. 469.
But in the instant case, St. Louis county is not a party to the record in the mandamus proceeding pending in the circuit court against the judges of the county court, in which the prosecuting'attorney insists upon his right to appear, and the right asserted here by the prosecuting attorney proceeds on the ground that, though not a party, the county is “interested” in that suit. This is true, it is said, because, though the judges of the county court are respondents in the man-
It is clear that the county is interested in a civil suit in mandamus directed against the judges of the county court by which it is sought to compel them, through utilizing the franchises of their office, to issue a dramshop license in favor of any citizen, authorizing him to sell intoxicating liquors in the county. In respect of this matter, it is to be said the judges of the county court, as individuals, apart from their office and the franchises which inhere in it could confer no privilege under the law, and it is only because of their
Moreover, since the case of Austin v. State, 10 Mo. 591, the sale of intoxicating liquors has been deemed unlawful in Missouri, because of its tendency to deprave public morals, and because of this fact the police power' is to be exercised with respect to it. Under the statute, only a law-abiding, assessed, tax-paying male citizen above twenty-one years of age may be licensed as a dramshop keeper at all. By other statutes, the dramshop keeper, though licensed, may be prosecuted for infractions of the law touching the sale of liquors as for misdemeanors, and the duty pertaining to such prosecutions is within the purview of the county as the unit of government. Then, too, the statutes expressly recognize and confer the right upon tax-paying citizens of the county to remonstrate against the issue of a dramshop license and thus endeavor to prevent the opening of such a place in the immediate locality. No one can doubt that these provisions obtain in the view that a dramshop tends to corrupt the morals of the people and entail injury through the depreciation in value of private property near or about it. When it is remembered the county is the unit of government with respect of such matters,
But it is said the mandamus against the judges of the county court of St. Louis' county is a personal proceeding against them and does not run against the court as the representative of the county. The case of State ex rel. v. Burkhardt, 59 MIo. 75, is urged upon us in support of this view. But it is obvious the question suggested was not decided there. It appears in that case that both a school district and Moniteau county claimed certain money, taxes collected, and then in the hands of the collector of taxes for the county. The school district sued out a mandamus against the county collector to enforce the payment to it. The county collector made his return to the writ, by which he set forth the controversy about the money in his hands, as though he were a mere disinterested stakeholder, and prayed that the county of Moniteau might be heard by its prosecuting attorney in that case. Thereupon the county, by its prosecuting attorney, filed what was termed an “interplea” to be made a party to the mandamus suit against the collector.. It is to- be noted from this that the return of the county collector was in the nature of a bill of interpleader, whereby it was sought to bring the several claimants for the fund before the court and as parties to the action, to the -end of acquitting him of responsibility-
Manifestly, this judgment was a proper one, for the case was neither one of interpleader nor was it competent for the county to become a party thereto in the manner pursued. The court declared, and the rule is well established by numerous decisions to the same effect since that case, that “the general provisions of the practice act, authorizing all persons having or claiming an interest in the subject-matter of the controversy to be made parties plaintiff or defendant, do not apply to proceedings by writ of mandamus, ’ ’ and this alone- is the substance of the decision. However, in that ease, the Supreme Court recognized the subject-matter as one in which the county was interested and said, “the county, through its prosecuting attorney, with the consent of the defendant, Burkhardt, might, in a return in his name, have urged as a defense most, if not all, the matters set out in the petition filed by it in the cause.” But though the court said that, as the county was interested in the matter, the prosecuting attorney might, “with the consent of Burkhardt,” set forth its claims in a return of the respondent, Burkhardt, it did not decide either that it was not the duty of the prosecuting attorney to do so or that he could not do so without the consent of Burkhardt. The county being interested
Moreover, it is true, too, as the court said, that the prosecuting attorney could set forth the county’s claim with the consent of Burkhardt, the collector, in the return of that officer, but the mere fact that the court said this could be done with his consent does not conclude the matter to the contrary, for that was all it became necessary for the court to decide in disposing of the controversy then in hand, in that no question was made with respect to the right of the county to utilize the collector’s return without his consent. From a study of the case, it appears clear enough that the Supreme Court recognized the county was interested in the subject-matter of that suit and recognized, too, that it was competent for the prosecuting attorney to appear in its behalf and assert its defense touching the same, but the method pursued to do so was not a proper one under the practice act, for that no warrant appeared to enable the county to become a formal party to the suit; and as Burkhardt, the collector against whom the judgment in the circuit court was given, had not appealed, Moniteau county could not do so. In concluding the opinion, the court said, “Moniteau county cannot legally complain of a judgment rendered solely against another party, and this court has no authority whatever on the appeal of Moniteau county, to affirm, or reverse that judgment.”
This case in nowise decides that it is not the duty of the prosecuting attorney to' appear in a mandamus case in which the county is interested. Neither does it decide that mandamus is purely, a personal proceeding which may not touch the office when the officer is sued as such concerning the alleged failure to per
The case of U. S. v. Boutwell, 84 IT. S. 604, is also urged upon us in support of the argument that the writ of mandamus is purely personal and does not reach the office. That was a mandamus which' proceeded against Boutwell, the secretary of the treasury, and after he resigned that office, the question presented related to the right to substitute Richardson, his successor, as respondent therein. The court denied this right on the theory that the duty sought to be enforced was a personal one to Boutwell and said, ‘ ‘ The writ does not reach the office.” Though that case has been approvingly cited, a limitation on the doctrine
In discussing the Boutwell case, tbe Supreme Court of the United States says, in Warner Valley Stock Co. v. Smith, 165 U. S. 28, 33, “Tbe cases, in wbicb it has been held by tbis court that an abatement takes place by tbe expiration of tbe term of office have been those of officers of tbe government whose alleged delinquency was personal and did not involve any charge against tbe government whose officers they were. ’ ’
To tbe same effect is United States ex rel. v. Butterworth, 169 U. S. 600, where it is pointed out that tbe duty considered in tbe Boutwell case was one wbicb, though omitted by a public officer, partook of a personal character in that it involved a discretion peculiar to him wbicb might be otherwise exercised by bis successor. Then, too, in Thompson v. U. S., 103' U. S. 480, tbe Boutwell case and tbe rule it reflects in respect of such personal duties is discussed and distinguished from such duties as appertain to and lie in such an office as a board of commissioners. As to such commissioners, it is said tbe duty savors rather of a public character and may be enforced even against their suecessors in office, and concerning tbis tbe court says, “To say otherwise would be a sacrifice of substance to form.”
Tbe case of Commissioners v. Sellew, 99 U. S. 624, was a mandamus involving tbe board of commissioners of á county in Kansas. It was argued, on tbe authority of tbe Boutwell case, that tbe writ of mandamus did not reach tbe office, but went alone to tbe members of tbe board of commissioners and was, therefore, purely personal in character. In answer to tbis, tbe court says, “One of tbe objects, in creating such corporations, capable of suing and being sued, and having perpetual succession, is that tbe very inconvenience wbicb manifested itself in Boutwell’s case
These mpre recent cases in the Supreme Court of the United States are referred to merely to portray that the idea the proceeding in mandamus is personal in character is not to be extended beyond the sense of the rule, when to do so would sacrifice the substance of its efficacy to mere technical words or form.
However this may be, with us in Missouri, there can be no doubt on the question here in judgment, for the Supreme Court has pointedly determined it in a recent case, as will appear by reference to State ex rel. v. Fraker, 166 Mo. 130, 140, 65 S. W. 720. In that case the court says, “Ever since Platte County Court v. McFarland, 12 Mo. 166, mandamus has been regarded as the proper proceeding to compel a recalcitrant county court to do its duty. [See, also, Riley v. City, 31 Mo. App. 439.] Besides, the writ of mandamus, is, in modern practice, treated as an ordinary writ of right, issuable as a course upon proper cause shown. ’ ’
It is trne the proper practice is to direct the writ against the justices of the county court by name, as judges of the county court, but when this is done, as is true in the instant case, the office is touched "if the subject-matter is one within the purview of that tribunal. [State ex rel. v. Fraker, 166 Mo. 130, 65 S. W. 720; Commissioners v. Sellew, 99 U. S. 624.] See, also, State ex rel. v. Grates, 22 Wis. 210, 214, where it is said, on this subject, “So far as the advancement of
Touching the argument that there is a constitutional question involved in the mandamus suit pending between Hornberg, relator, and the county judges, which precludes the jurisdiction of this court in the present controversy, in which the prosecuting attorney is relator, it is to be said that it is not sought to invoke an order of this court in or pertaining to the merits of that case. The only right sought to be vindicated here is that of the relator, prosecuting attorney, to appear in his official capacity in the case against the county judges as the duly elected and qualified representatives of St. Louis county. Moreover, if the prosecuting attorney is the proper officer to set forth the defense of the interests of the county in that case, then the constitutional question asserted is to be treated as not within the record in that case at all, for the reason the proper officer of St. Louis county to raise or prefer such question has not done so. In other words, the return of the county judges, made in their own behalf, through excluding the prosecuting attorney from participation therein in behalf of the county, is to be treated as without avail.
If it be true that the mandate of the alternative writ is broader in its terms than the law warrants, the question is not a serious one under the practice' which now obtains, for it is competent to amend it and award the peremptory writ for so much of the relief as is proper. [See State ex rel. v. Baggott, 96 Mo. 63, 71, 8 S. W. 737; State ex rel. v. Hudson, 226 Mo. 239, 264, 126 S. W. 733.]
Judge Reynolds deems the decision of the court contrary to the cases of State ex rel. v. Nortoni, et al., 201 Mo. 1, 98 S. W. 554; State ex rel. v. Burkhardt, 87 Mo. 533; State ex rel. v. Burkhardt, 59 Mo. 75; State ex rel. v. Fraker, 166 Mo. 130, 65 S. W. 720; State ex rel. v. Broaddus, 207 Mo. 107, 105 S. W. 629, and therefore requests that the cause be certified to the Supreme Court for final determination, and it is so ordered.
Dissenting Opinion
DISSENTING OPINION.
One Hornberg, on January 21, 1914, filed with the clerk of the county court of St. Louis county his petition, bond and affidavit for a dramshop license. These being duly presented to the county court, that court refused to try, hear, or determine the right of applicant to a license. Thereupon Hornberg filed a petition in the circuit court "or a writ of mandamus against the judges of the "ounty court to compel them to proceed in the matter of his petition and to hear, try and determine his right to a dramshop. This petition was duly assigned to division No. 2 of the circuit court of St. Louis county, over which the respondent here, the Honorable Gttstavitjs A. Wtjkdemann, presides. That judge,
“First. That it fails to state that it is made by respondents as judges of the county court and is therefore not responsive to the writ.
“Second. That the said pretended return was procured by collusion between the parties.
“Third. That it does not properly present the issues of law and is not a correct statement of the facts.
“Fourth. That your petitioner was not permitted to prepare the said pretended return or consulted with reference, thereto.
“Tour petitioner further prays that an order may issue directing him as the legal adviser of the county court and of the judges thereof in their official capacity to prepare and file a proper return to the alternative writ herein for the reason that it is by law made the duty of your petitioner to represent the respondents in suits of this character and that your petitioner is the only person authorized by law to so represent them. Tour petitioner further prays that the document heretofore filed herein, entitled ‘Motion for peremptory writ’ be also stricken from the files for the reasons above set forth.”
On that day, February 6, the respondent here, Hon. G. A. Wurdemann, as judge, and during the session of the court, having before him this motion of the prosecuting attorney, denied it, the court, however, granting relator here permission to appear “as a friend of the court” in the hearing of the cause.
On the forenoon of that day, however, and before the motion of the prosecuting attorney had been filed and acted upon by the circuit court, the prosecuting attorney presented his petition to one of the judges of our court and that judge issued the alternative
It is settled law in this State that a writ of mandamus “will not issue commanding an'inferior court, tribunal or ministerial 'body to act until it is first established by the evidence that said court, tribunal or ministerial body has been legally requested to act, and that it has illegally declined to do so.” [State ex rel. Abbott et al. v. Adcock et al., 225 Mo. 335, l. c. 363, 124 S. W. 1100.] Here the lack of demand and refusal to act prior to presentation of the application of the petition for the writ is clear, but on that being suggested by counsel for respondent, on the coming in of tbe return, the Honorable Judge, respondent here, in person and in open court, waived this defect, on our suggestion that we would, if it was insisted upon, quash the alternative writ and issue a new one. So that the question that the application to us was premature and our writ issued prematurely, is out of the case.
It is clear that if the return of the county judges, as made by them, is to remain in the case, a constitutional question is presented in this case by that and by the motion for judgment on it, interposed in the circuit court by the relator in that case; indeed the return of the judges discloses that a constitutional
The fundamental question in the case, however, is the right of the prosecuting attorney of the county of St. Louis to require the respondent, as judge of the circuit court, to strike from the files the return
In the first place the county, as a county, is not a proper party to this proceeding. Our court has said, in Bell v. County Court, 61 Mo. App. 173, l. c. 176, that the alternative writ in that case had been directed to the county court;' that this was error; that the writ should have run against the justices of the county court by name.
In State ex rel. v. Burkhardt, 59 Mo. 75, it is said (1. c. 78): “It is not perceived upon what principles, or by what authority the county of Moniteau was made a party to the original proceeding. The writ of mandamus is in form a command in the name of the State, directed to some tribunal, corporation or public officer, requiring them to do some particular thing therein specified, and which it has been previously determined that it is the duty of such tribunals or other person to perform.” This same proposition was decided at an early date by our Supreme Court in Platte County Court v. McFarland, 12 Mo. 166. There it appeared that the cause then before the court was docketed as one against the county court of Platte county, and was a proceeding against the county court to compel that court to perform its duty respecting the opening of a public road. It appears by the statement of the case that McFarland and others, being the commissioners to survey and mark out a State road, made a report of their proceedings to the county
The statutes relating to the duties of the county attorney or prosecuting attorney (sections 1007, 1008, Revised Statutes 1909), are set out by my brother Nortoni, so that it is not necessary for me to repeat them in full. They expressly provide that 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,” etc., and that he “shall prosecute or defend, as the ease may require, all civil suits in which the county is interested, represent generally the county in all matters of law, investigate all claims against the county, draw all contracts relating to the business of the county, and shall give his opinion, without fee, in matters of law in which the county is interested, and in writing when demanded, to the county court, or any
In many matters, and especially in the most material matters relating to the issuance of dramshop licenses, these judges act judicially. That in acting judicially they are to be controlled by the prosecuting attorney would surely be a new doctrine in our State. That they do act judicially in many matters and in the final act of granting the license, see, among other cases, State v. Evans, 83 Mo. 319; State ex rel. Smith v.
But it is said that the right of the prosecuting attorney to interfere in this matter and take charge of this litigation, is to be found in these words: “He shall prosecute or defend, as the case may require, all civil suits in which the county is interested, represent generally the county in all matters of law,” etc. In point of fact, the claim made by the relator here, that as prosecuting attorney he has a right to control tíre proceeding rests solely upon the proposition that the county is interested; he does not, in so many words, claim that he is in all cases attorney for the judges. These cases of State ex rel. Gordon v. Burkhardt, State ex rel. Conran v. Williams, and State ex rel. Baker v. Fraker et al., are in point here, as I think, for the reason that they hold that having an interest does not authorize one to interplead or interpose in a proceeding by mandamus. As the relator asserts his right to control the mandamus upon the ground that the county has an interest in the proceeding, I think that these cases are against his claim. While it may be that the county and the people thereof are interested in the collection of the fees for dramshop licenses and in the issue of dramshop license, they have no more interest in that than in dozens of other matters pertaining to the general public. The interest referred to in the statute and which the prosecuting attorney is to protect, must appear in and by the pleadings, or, if not so disclosed, must be capable of being brought before the court by way of intervention by the county in a pending action. This may be done in any ordinary civil action. But while mandamus is now treated as a civil action, our statute (R. S. 1909', secs. 2146, 2555), being practically that of Queen Anne (9 Anne, Oh. 200'), it is the settled law of this State that parties no.t of- record, no matter what their interest, cannot
In State ex rel. v. Williams, 96 Mo. 13, 8 S. W. 771, State ex rel. v. Burkhardt, supra, is expressly affirmed on this point, it being reiterated (l. c. 18) “that the general provisions of the practice act allowing all persons having an interest in the suit to be made plaintiffs or defendants had no application to proceedings by mandamus. It is, therefore, clear that the return must conform to the common law rules; and this is none the less so because the relator may plead to or traverse all or any of the facts stated in the return.”
This seems to be clear also from another point of view. That is, that the respondents in the case of State ex rel. Hornberg v. Judges of the County Court, is an action in which they, as judges, it is true, but individually, must make the return as they did in this case. It is true that it was alleged in the application which was made to us for the writ by the relator here, that that was filed in court by attorneys other than himself, but that is entirely immaterial. The return is made by the judges themselves; is their return; is not the return of the county; is not the return of any attorney; but it is the return of the individuals against whom the writ was directed and which commanded them to make the return.
The alternative writ is not only directed to the person occupying the office, but the return must be made by him. Says High on Extraordinary Legal Remedies (3 Ed.), sec. 446: “When the aid of a mandamus is invoked against an inferior court, it would seem to be sufficient, ordinarily, to address the writ
The old and often followed case of St. Louis County v. Sparks, 10 Mo. 117, is cited in support of this. In the Sparks case it was urged that the writ having been addressed to the justices of the county court and severally served on them in vacation, that there was no warrant for this; that it should have been addressed to the court. Answering that, our Supreme Court said (l. c. 120): “A mandamus in the alternative may be served on the officers composing the court in vacation, and ... a delivery of a copy of the process showing the original, is a sufficient service. . . . It seems it may be addressed to the court or to. the individuals composing it.” Since that decision it has been the invariably approved practice to issue these writs against the judges composing the court, and the writ is served on them, not in term time but on the judges in chambers or in vacation, as other writs against individuals are served. That has always been so in the case of writs served upon the judges of this court by direction of the Supreme Court and we have invariably followed’it in our own practice.
So fully has the rule that the direction of the writ is to the individual, and that he is the one who is to make the return, been recognized, that where the return of the judge or judges or court is signed by attorney, it has been challenged for lack of individual signature. Thus in State ex rel. Wittenbrock v. Wickham, Judge, 65 Mo. 634, the return was challenged on the ground that it was not the bona fide answer of the judge but a defense made and set up by an attorney. Answering this contention, our Supreme Court said (l. c. 636), that as the law does not require
This was followed by our court in State ex rel. Castlio v. Edwards, Judge, 11 Mo. App. 152.
In Ex rel. Douglass v. Circuit Judge, 42 Mich. 495, it is said (l. c. 497): “The answer filed is not signed by the circuit judge. It purports to have been drafted by attorneys and not to have been submitted to the respondent for approval by him. We do not consider, therefore, what appears therein, but have treated the case as on demurrer to the showing made by the relator.” That is to say, the Supreme Court of Michigan treated a return not signed by those to whom it was directed, or by some attorney by their authority, as a nullity. What that court, in line with our own court, has held in the Edwards case, supra, and our own Supreme Court in the Wickham case, supra, would hold as to a return made by an attorney, which is not only not submitted to the respondent but by which, as here it is expressly stated, it is intended to repudiate the return of the respondents in the Hornberg case, and is to be a return, set up and devised by the attorney himself, without the assent and contrary to the will of the judges of the county court, is not difficult to determine.
I think that the case at bar, on this point falls directly under what is said by the Supreme Court of the United States in the case of United States v. Boutwell, 17 Wall. (84 U. S.) 604.
It is claimed that the decision in that case, as to this point, has been disapproved or qualified by later decisions of that court. An accepted text-writer, (2
It is hardly necessary to say that the judges of the county court of St. Louis county are in no sense a corporation, nor would service upon the clerk of the county court have brought these defendants into, court, or a peremptory writ issued with service upon that clerk have been binding upon the judges, or that disobedience to it by them under such form of service would be punished on them as for contempt. Nor would the county be liable for costs if the case is determined against the respondents. The respondents, as said in the Boutwell case, supra, and others cited, are pre
In some jurisdictions it is held: “A continuing duty may be enforced against successors of the officer originally in default,” as illustrated in State v. Cornwall, 97 Wis. 565; in others it is held that “it will not lie against such successors when not themselves in default for the failure of their predecessors to perform the- duty.” So it is held in People v. Burns, 106 N. T. App. Div. 36, 94 N. Y. Suppl. 196; State v. Cincinnati, 7 Oh. Dec. (reprint) 326; Holdermann v. Schane, 56 W. Va. 11.
Referring to the eases cited in support of the position of the relator, and first taking up State ex rel. Campbell et al. v. Heege et al., Judges of the County Court of St. Louis County, 37 Mo. App. 338, I am unable to see that it lends any support to the contention of counsel for the relator. All that is said as touching the propriety of the application for certiorari being made by citizens of St. Louis county instead of by the Attorney-General or the prosecuting attorney of the county, is that the reason the petitioners, taxpayers and citizens had appeared in our court and asked special leave to institute the proceeding in their names, was that they had applied to the Attorney-General of the State and to the prosecuting attorney of St. Louis county for permission to make the application at their relation respectively, but that in
Clark & Grant v. Lyon County, 37 Iowa, 469, another case referred to in support of the right of the county attorney to appear in an action to which the county was a party, is an action directly against the county eo nomine to compel the payment of certain warrants. It appeared that the board of supervisors of the county were the same persons who had issued the warrants and, it was charged, issued them for
Neither Clough & Wheat v. Hart, 8 Kan. 487, nor Waters v. Trovillo, 47 Kan. 197, are particularly in point here. Both were actions on contracts of employment of private attorneys by the county commissioners. The point in decision in each was the power of these bodies to employ outside attorneys and contract for their payment by the county when the commissioners, as representing the county, were parties. The decision of the court was that as the statutes of
In Board of County Commissioners v. Jones, 4 Okla. 341, practically the same point is decided, and that was the sole question involved, namely, the authority of the county authorities to employ and pay out of the public funds special attorneys. The decision is, that no such authority existed. While in the discussion of this matter a good deal is said, both as original matter and by way of quotation, about the county attorney being elected by the people and his authority to appear in all cases in which the county is employed, as a matter of fact, it is obiter.
The Board of County Commissioners v. State Capital Co., 16 Okla. 625, does support the contention of relator here as to his authority to appear and conduct all cases in the court in which the county is a party, and even goes to the extent of holding that the county attorney is not bound to follow the direction and advice of the coxinty commissioners in regard to the conduct of the litigation against the county. This decision stands alone on that proposition. We doubt if the rule theré announced has ever been recognized in practice, certainly not by judicial decision, in our State. Judges.óf our county courts, as well as prosecuting attorneys, are elected by the people and are the agents of the people, each within their own sphere. But it has never been even suggested heretofore that the judges of the county courts were subordinate to the prosecuting attorney, or that the will of the. latter should govern in matters within the ministerial, judicial, or even gwasi-judicial powers ,of the county court. The Oklahoma decisions certainty are against the idea, so far as I know heretofore universally entertained in this State oh that matter. While the prosecuting at
Coming to the action of respondent, Judge Wtjedbmann, in overruling the motion of relator to strike the return of the judges from the files, and declining to allow the relator, as prosecuting attorney of the
The general rule that mandamus will not lie when there is an adequate remedy, as by appeal, is stated in 26 Cyc., p. 158, par. 2, to be that it, “will not lie to. control or review the exercise of the discretion of any court, board, or officer, when, the act complained of is either judicial or quasi judicial.” [See also Am. & Eng. Ency. of Law (2 Ed.), p. 753.] And it is further said in Cyc. (p. 158, par. 3): “While mandamus may be invoked to compel the exercise of discretion, it cannot compel such discretion to be exercised in any particular way. ’ ’ State ex rel. v. Jones, 155 Mo. 570, 56 S. W. 307, is cited for this. It is further said in 26 Cyc. 188, that “While a writ of mandamus will not as a general rule issue to review an exercise of judicial discretion, it may be employed to compel an inferior tribunal to act or to exercise its discretion, although the particular method of acting or the manner in which the discretion shall be exercised will not be controlled. But as a general rule it will not issue for this purpose where there is a remedy by appeal or other method of review.” In 26 Cyc., page 140, par. C, it is said: “The writ is employed only in unusual cases where other remedies fail, and it is hedged about by many conditions totally inapplicable to the ordinary suit at law. . . . The issuing of the writ therefore is generally, almost universally, considered discretionary, and to this extent only is the proceeding a prerogative one.” So it is
In State ex rel. Morse v. Burckhartt, supra, while' a proceeding for prohibition in which' the writ was denied, Judge Henry, speaking for our Supreme Court, discussed the question of mandamus at considerable length, referring particularly to State ex rel. Fitzpatrick v. Meyers, 80 Mo. 601. The Meyers case was a proceeding by mandamus, to compel the county court of Nodaway county to issue a dramshop license to the relator. The question of the controlling effect of what was known as the “Downing Law” was involved. Referring to the Meyers decision in the Burcldiartt case, supra, our Supreme Court says in the latter (l. c. 537):
“Whether the county court was authorized to grant a dramshop license for a saloon, within three miles of the State University, depended upon the effect of the ‘Downing Law’ upon the three mile act. If the ‘Downing Law’ repealed it, the county court had, and if not, it had not authority to. grant the license. The circuit court in the mandamus proceeding had jurisdiction to determine that question, and that it erroneously decided it, if such should be our opinion, does not affect the jurisdiction of the court. Whenever a court errs in expounding a statute, it gives or denies a right, which it is not, strictly speaking, authorized to do; and in every case, with as much*68 propriety as in this, it might he said that the court had no right to render the judgment entered. The question is not whether the court was authorized to render the judgment entered, hut whether it had jurisdiction to enter any judgment at all. ... No man has a right to anything contrary to law, hut courts frequently err in declaring one to have a right which, on a proper construction of the law, would be denied him. ... If the circuit court, in its judgment against the county court, erred, an appeal or writ of error might have been prosecuted to reverse it; and it is no answer to this that the judges of the county court refused to prosecute an appeal or writ of error. This court cannot interfere by this extraordinary writ to save the people of the district within which dram-shops are prohibited from the consequences of the obstinacy, or whatever it may have been, which prompted the county judges to refuse to prosecute an appeal.’’ Even a stronger case is Martin v. The State, 12 Mo. 471, where at page 475 it is said: “A circuit judge, therefore, discharging (a prisoner under habeas corpus) against this provision of the statute, may be considered as acting indiscretely, even erroneously; yet having jurisdiction over the subject, his order discharging, must be considered a justification to the jail- or in turning out the prisoner, thus ordered to be discharged.”
This case is cited and extensively quoted from with approval in State ex rel. Herriford v. McKee, Judge, supra, l. c. 242 and 243. Even stronger on this is State v. Wear, 145 Mo. 162, l. c. 190 and 203, 46 S. W. 1099.
Applying the principle announced in these cases to the case at bar, the determination of the right of the prosecuting attorney of St. Louis county to appear in this case, to allow him to withdraw the return made by the judges of the county court and substitute one of his own, and to tahe charge of that case, on the ground that the county was interested, and that he,
The circuit judge did not decline to hear the prosecuting attorney on his motion -f did not strike that motion from the files, but hearing it, considering it, acted on it and overruled it. That was judicial action. The question then is, can we reach that action of the Hon. Circuit Judge by mandamus ? His court is one of general jurisdiction. He had power to issue the writ of mandamus then before him, and had jurisdiction over the subject-matter. Even if he erred in his action in overruling the motion or petition of the prosecuting attorney, relator, he was acting within his judicial power. He had a right to err. That error cannot be reached by mandamus. So an unbroken line of decisions of our Supreme Court all say.
For-these reasons I am clearly of the opinion that the alternative writ should not have been issued and that having been issued it should be quashed and the respondent circuit judge discharged therefrom. On these two grounds, therefore, first, the grave doubt as to the jurisdiction of our court in this case at all, under the decision of the Supreme Court in State ex rel. Sale v. Nortoni et al., 201 Mo. 1; and, second, under State ex rel. Morse v. Burckhartt, 87 Mo. 533; State ex rel. Gordon v. Burkhardt, 59 Mo. 75; State
Deeming the decision rendered by the court con-, trary to the decisions of the Supreme Court in the cases last above cited, I ask that this cause and proceeding be certified and transferred to the Supreme Court.
