210 S.W.2d 1 | Mo. | 1948
The State, at the relation of the Attorney General, instituted in this court three separate proceedings in certiorari to review the records of the Circuit Court of Cole County (of which the respondent Hon. Sam C. Blair is judge) in certain habeas corpus proceedings lately pending therein, and severally brought by Ferguson, Slyker and Debert (hereinafter referred to as petitioners) to effect their release from the Missouri Penitentiary. On the merits there is but one point involved, and as it is common to all of the cases, the three proceedings have been consolidated, and will be disposed of in one opinion.
[1] Each petitioner had been convicted and sentenced under the Habitual Criminal Act, Sec. 4854, R.S. '39 and Mo. R.S.A.; Ferguson *589 and Debert to life imprisonment for first degree robbery, and Slyker to ten years for forgery. The point in controversy is whether the petitioners were amenable to the provisions of that Act. It was made to appear (and it is undisputed) that when the offenses for which they were subsequently convicted were committed, each petitioner was at large from the penitentiary under a conditional commutation of sentence (extended by the Governor), and the informations so alleged. In this state of facts, it was their contention that they had not been "discharged, either upon pardon or upon compliance with the [previous] sentence," the condition specified by Sec. 4854 as that upon which one subsequently convicted may [2] be subjected to the more severe penalties provided by that section. It was contended, for this reason alone, that the sentences under the Habitual Criminal Act were unauthorized. As no other question arises as to its applicability, it is unnecessary to further develop the facts. The respondent judge sustained petitioners' contention, and adjudged each of the challenged sentences to be erroneous as to time. Purporting to act under Sec. 1660, he proceeded to resentence them (as of the date of the entry of the original judgments) to terms in the penitentiary as follows: Ferguson, 12½ years, Debert, 7 years, and Slyker, 7 years, 3 months. However, the judgments expressly denied their prayers to be discharged from the custody of the warden. This is understandable as to Debert, who was held to complete previous sentences, but in the Ferguson and Slyker cases the record negatives the idea of any such reason.
The precise question here involved was determined adversely to petitioners' contention in the very recent case of State ex rel. Stewart v. Blair, J.,
[2] The dates of the judgments in petitioners' habeas corpus cases were as follows: In Ferguson's, on June 7, 1946; in Slyker's, on October 11, 1946, and in Debert's on March 17, 1947. It appears that at least in Debert's case (in all of them the Attorney General appeared as counsel for the warden) the respondent judge, at the time judgment was entered, took this position, as shown by the record certified here: *590
"THE COURT: If you have any serious doubts as to my ruling, I wish you would take this to the Supreme Court on certiorari and let them decide whether I am right or wrong in my theory. . . . This man will be in the penitentiary for some time, and I would like to have this point resolved. It is the order of this court that you take this up."
Notwithstanding this suggestion and direction, the fact is that certiorari was not applied for until October 9, 1947, on which date all three applications were filed, and the writs subsequently issued.
The motion to quash, after pointing out the several dates just mentioned, avers that relator "was guilty of laches in waiting the aforesaid periods of time, and long after the judgments complained of had been entered in the records of the Circuit Court of Cole County, and the terms at which they were rendered had expired, and long after the judgments had in fact been executed, the records of the Missouri State Penitentiary changed to correspond therewith, and two of the petitioners in the Circuit Court, Thomas J. Ferguson, Case No. 40692, and Stephen Slyker, Case No. 40691, had been released and discharged from the penitentiary under the sentences imposed upon them by the respondent, before making his applications for certiorari in said causes." The motion further avers that "by reason of the aforesaid facts and circumstances injustice, embarrassment and confusion would result to the said petitioners in said causes before the Circuit Court of Cole County and to the officers of the Missouri State Penitentiary, who are charged with the duty of requiring enforcement of the sentences imposed upon persons sentenced to that institution, in the event the judgments entered by the Circuit Court of Cole County and the sentences imposed thereunder should now be rendered invalid."
Although respondent vigorously briefs and argues the motion, relator has ignored it, and so we are left to determine the question unaided by the state's view of the matter. There is no statute or court rule limiting the time for applying for the kind of certiorari here involved, which is, in general, the same as the common law writ. [3] State ex rel. Kennedy v. Hogan,
"Laches on the part of the government in bringing suit is said not to be a defense in the case of a claim which is founded on sovereign right. It is also observed that the laches of the officers of the government cannot be set up as a defense to a claim which is made by the government." 19 Am. Jur., Equity sec. 495. In 30 C.J.S., Equity sec. 114, it is said: "The doctrine of laches cannot be applied against public rights. While the contrary has been held, by the weight of authority the defense of laches is not available against the government, state or national, in a suit by it to enforce a public right or to protect a public interest, or, as the rule is sometimes expressed, the laches of its officers or agents will not be imputed to the government. This rule applies, however, only to suits brought by the government in its sovereign capacity to enforce or to protect a public or governmental right; if it sues for the use and benefit of an individual, or for the enforcement or the protection of a private and proprietary right rather than a public or governmental right, laches is pleadable against it the same as against an individual."
There are quo warranto cases in Missouri in which the defense of laches has been upheld — in at least one of which the proceeding was upon an information exhibited of the prosecuting attorney in his official capacity, and not at the relation of a private individual, State ex rel. Brown v. Town of Westport,
[3] Moreover, while as between private suitors certiorari is not a writ of right, and the issuance thereof rests in a sound judicial discretion (State ex rel. Duraflor Products Co. v. Pearcy,
The records of the Cole Circuit Court should be quashed, except insofar as the several judgments deny petitioners' prayers for discharge from the custody of the warden, as to which aspect of the judgments our writ should be quashed. It is so ordered. All concur.
