source: Caselaw Access Project

author: WOODSON, J. GRAVES, J.

license: Public Domain

text:
    REBECCA A. MOON, Appellant, v. ST. LOUIS TRANSIT COMPANY.
    In Banc,
    November 27, 1911.
    1. NEGLIGENCE: Speed of Car: Testimony of Non-Expert. Witnesses who saw the ear in motion, though not experts as to the speed of oars, are competent to testify the speed of the car immediately before and immediately after its collision with plaintiff’s carriage.
    2. -: Contributory Negligence as Matter of Law. The facts in evidence in this ease did not authorize the court to rule that the driver of the carriage across the railway track in front of an approaching street car was as a matter of law guilty of contributory negligence, but whether he was or not was an issue of fact which should have been submitted to the jury under proper instructions. If' the only facts were that the driver when he was twenty-two feet from the track saw or could have seen a car approaching two blocks away, that he was driving about eight miles an hour and could have stopped the carriage within ten feet, then a ruling to the effect that as a matter of law he was guilty of contributory negligence would have been proper. But where the other facts were that the heads of the horses were only eight or ten feet from the track when the driver was twenty-two, that he could not have stopped the horses within eight or ten feet, which would have brought their heads to the track’s rail, that he did not discover the car was running in excess of the ordinance speed until the team was within three feet of the track, which fact made it impossible for him to stop the horses in time to avoid the collision if he could not stop them within eight or ten feet, as the evidence tended to show, such a ruling was error.
    3. -: Of Master’s Servant: Imputable to Wife. The negligence of the master’s servant is not imputable to the master’s wife. Nor is thé negligence of the husband ordinarily to be imputed to his wife, in case she is injured by his and another’s concurring negli-. gence. So that where there was some testimony tending to show that the servant in driving the carriage, in which were the plaintiff and her husband, was guilty of contributory negligence, and the testimony as to whether the driver was the servant of plaintiff or the servant of her husband was conflicting, the negligence of the servant, resulting in plaintiff’s injury, even if established, could not as a matter of law be imputed to her. However, the negligence of the servant is imputable to his master, and if the latter is injured through the concurring negligence of the servant and that of some other perspn, the negligence of the servant will bar a recovery of damages by his master from such other person.

      Appeal from St. Louis City Circuit Court. — Hon. Charles Claflin Allen, Judge.
    Reversed and remanded.

      John A. Gilliam for appellant.
    (1) The court erred in excluding the evidence as to the speed of the car. Stotler v. Railroad, 200 Mo. 123; Walsh v. Railroad, 102 Mo. 582; Aston y. Railroad, 105 Mo. App. 231; Hall v. Railroad, 124 Mo. App. 672. (2) The court erred in giving the instruction for defendant, which forced plaintiff to take a non-suit. Holden y. Railroad, 177 Mo. 471; Sluder y. Transit Co., 189 Mo. 137; Woods v. Railroad, 188 Mo. 244; Garrett v. Railroad, 64 Atl. (Del.) 254; Wolf v. Railroad, 91 Pac. (Oreg.) 460; Ashley v. Kanawha Valley Traction Co., 55 S. E. (W. Va.) 1016; Hauck-Hoerr Co. v. United Railroads, 127 Mo. App. 190; Hutchinson y. Railroad, 161 Mo. 246; Mullin v. Transit Co., 196 Mo. 572; Weller v. Railway Co., 120 Mo. 635. (3) The court erred in imputing the negligence of her husband and bis driver (if there was any such negligence) to this plaintiff. Stotler v. Railroad, 200 Mo. 146; Becke v. Railroad, 102 Mo. 544; Sluder v. Railroad, 189 Mo. 138; Bailey v. Centerville, 115 Iowa, 273; Willfong v. Railroad, 116 Iowa, 548; Railroad v. Creek, 130 Ind. 139; Railroad v. Spilker, 134 Ind. 380; Railroad v. McIntosh, 140 Ind. 261; •Railroad v. Johnson, 163 Ind. 518; Reading Township v. Telfer, 57 Kan. 798; Neal v. Rendall, 98 Maine, 69; Whitman v. Fisher, 98 Maine, 577; Finley v. Railroad, 71 Minn. 471; Lammers v. Railroad, 82 Minn. 120; Teal v. Railroad, 96 Minn. 379; Flori v. St. Louis, 3 Mo. App. 231; Hedges v. Kansas City, 18 Mo. App. 62; Munger v. Sedaba, 66 Mo. App. 629; Hajsek y. Railroad, 68 Neb. 539; Harris v. Uebelhoer, 75 N. Y. 169; Platz v. Cohoes, 24 Hun, 101, affirmed 89 N. Y. 219; Hoag v. Railroad, 111 N. Y. 202; Hennessy v. Railroad, 73 Hun, 269, 26 N. Y. Supp. 321; Metcalfe v. Railroad, 12 App. Div. 147; Davis, v. Guarnieri, 45 Ohio St. 470; Railroad v. Greenlee, 62 Tex. 344; Railroad v. Kietoe, 2 Tex. 643; Schouler’s Dom. Rel. (5 Ed.), secs. 34 to 50; Sheffield v. Central Union Tel. Co., 36 Fed. 164; Shaw v. Craft, 37 Fed. 317; Petersen v. St. Louis Transit Co., 199 Mo. 331; Noyes v. Boscawen, 64. N. II. 361; Lapsley v. Railroad, 50 Fed. 172, affirmed 51 Fed. 174; Johnson v. St. Joseph, 96 Mo. 671; Schultz v. Old Colony St. Ry. (Mass.), 8 L. R. A. (N. S.) 597.

      Boyle & Priest and T. M. Pierce for respondent.
    (1) Plaintiff’s driver was guilty of contributory negligence as a matter of law. Sanguinette v. Railroad, 196 Mo. 494; Beach on Contributory Negligence (2 Ed.), see. 182; Wharton on Negligence (2 Ed.), see. 382. It has been said that where the evidence shows that the car was traveling over three times as fast as the wagon and that it had more than four times as far to go, after the motorman saw the wagon, as the wagon had, and that the driver thought he could cross the track in safety, the motorman is not to be condemned if he thought the same. Roenfeldt v. Railroad, 180 Mo. 554. Suppose that the motorman saw the carriage approaching, did he not have a right to suppose that the driver would stop when he had ample time to do so? It was not the duty of the motorman to commence to check his car until there was something in the conduct of the driver to indicate that he did not intend to stop. The undisputed proof shows that when the driver was more than twenty-two feet from the track he could see Olive street towards the south and that he could have stopped his team within a few feet. How, then, can the judicial mind escape the conclusion, or how can reasonable minds differ upon the proposition, that the driver was negligent? Walker v. Railroad, 193 Mo. 453; Reno v. Railroad, 180 Mo. 469; Petty v. Railroad, 179 Mo. 666; Henzelman v. Railroad, 88 Mo. App. 123; Laun v. Railroad, 216 Mo. 580. The law is, that if one sees, or has reason to believe, that a street ear is running in violation of a speed ordinance, he has no right to risk his life on the presumption that the ordinance is being observed. Green v. Railroad, 192 Mo. 131;' Stotler v. Railroad, 204 Mo. 639. There was no evidence tending to prove within what distance a car running at twenty or twenty-five miles an hour could be stopped, and there was, therefore, no showing that the car could have been stopped in time to have averted the injury after the driver placed himself in a position of peril. In the absence of such showing, a recovery cannot be had under the Last Chance Doctrine. McGhee v. Railroad, 214 Mo. 541; Wilkerson v. Railroad, 140 Mo. App. 316; Zurfkuh v. People’s Ry., 46 Mo. App. 642; Theobald v. Railroad, 191 Mo. 395; Dey v. Railroad, 140 Mo. App. 461. (2) The negligence of the driver was imputable to plaintiff. The erudite counsel for plaintiff has set out a great number of cases holding that the negligence of a woman’s husband driving a vehicle in which she is seated, cannot be imputed to her. This is undoubtedly and unquestionably the law in this State and in many others. Hedges v. Kansas City, 18 Mo. App. 62; Flory v. City of St. Louis, 3 Mo. App. 231. But in New Tork, Indiana, Missouri, and other States, where a change has been made in the common law relations of husband and wife, and married women have a right to recover damages sustained by them for their own separate use, the contributory fault of a husband, while in company with his wife, is not chargeable to her in such an action. In the case under consideration, however, the husband had no control over his wife’s actions, nor was she subject to his directions. She sat by his side, sui juris, invested by law with all the necessary weapons with which to vindicate her own rights. She was being driven by a servant under her dominion; one who would stop when she ordered, and direct the vehicle to any place where she commanded. He was her servant and she was his mistress. There is no controversy about the facts. Central Passenger Ry. Co. v. Chatterson, 14 Ky. Law Rep. 665; Nellis on Street Railway Accident Law, p. 484, sec. 5; Markowitz v. Railroad, 186 Mo. 357.
   WOODSON, J.

The plaintiff instituted this suit against the defendant to recover the sum of $15,000, damages for personal injuries sustained through the alleged negligence of the defendant.

A trial was had in the circuit court of the city of St. Louis, which resulted in the plaintiff taking an involuntary non-suit, with leave to move to set same aside.

Upon motion for that purpose being filed and overruled, the plaintiff duly appealed the cause to this court.

The facts are few and are substantially as follows, as appear from appellant’s and respondent’s statements of the case.

Appellant’s evidence tended to show that she was riding in her husband’s carriage, which was driven by her husband’s driver, her husband sitting by her side, about 11 o’clock p. m. on February 13, 1904. While crossing Taylor avenue at its intersection with Washington boulevard her husband’s carriage was struck by a St. Louis Transit Company car, then going at a speed estimated from 17 to 25 miles an hour. No gong or bell was rung or any other warning given of the approach of the car. The car had on it a small, dim light. The carriage when struck was knocked upon its. side, and dragged from 40 to 100 feet, the plaintiff was cut and bruised severely, her neck twisted and strained so as to cause her great pain and suffering for many years, and a dizziness caused which at the time of the trial still existed. The limit of speed permissible under the ordinance in evidence, No. 21113, was fifteen miles per hour, restricted, however, by that provision which provided that it should not be construed as sanctioning or allowing any car at any time or place to run at any rate of speed which may be dangerous to the safety of passengers or persons on the streets.

The driver of the carriage testified that when he got about one hundred feet from the track he slowed down and checked his horses and listened for a car and hearing none he increased his speed to about the same gait that he was going just before he slacked up, and from that time until he was struck he looked both ways and listened for cars. He did not hear or see any and proceeded to cross the tracks going from six to eight miles an hour. When his horses got about eight feet from the track, he being about twenty feet therefrom, he saw a ear coming from the south, he thought, about 150 or 160 feet away. He judged he could cross safely, but when his horses were about three feet from the track he saw that the car was coming much faster than he at first thought, and he then whipped up. The carriage was struck on the rear hub. The driver testified that the car was going about three times as fast as the carriage at the time he was struck, and that he could have stopped the carriage in a. distance of from eight to ten feet.

There was no evidence as to the distance in which the car could have been stopped.

The driver also testified that he was coachman for the family; drove Mr. and Mrs. Moon; took orders from both of them, and that Mr. Moon was his master and Mrs. Moon was his mistress.

I. There are but three legal propositions presented by this record for determination, namely: First, did the court err in excluding the testimony of witnesses offered to show the speed at which the car was running at the time of and just prior to the collision, who were not shown to have been experts in that regard? Second, was the driver of the carriage guilty of negligence as a matter of law? And third, was his .negligence imputable to the appellant?

We will dispose of those questions in the order stated.

The first proposition mentioned has been definitely settled against the respondent by this court in a number of cases. For instance, in the case of Stotler v. Railroad, 200 Mo. 123, 1. c. 128, Judge Lamm cited with approval the case of Walsh v. Railroad, 102 Mo. 586. In that ease Judge Black said:

“The first point made by the appellant is that there is no competent evidence showing that the train was running at a rate of speed exceeding six miles an hour. This case is quite unlike that of Williams v. Railroad, 96 Mo. 275. There the witness did not see the moving cars; he heard the noise from the collision only, and was at his stable and not at the place of the accident. Under such circumstances his evidence was deemed to be of no value. Here the witness Katz, who says the train was running eighteen. or twenty miles per hour, was. standing in his door with the train in front of him. It was in the nighttime, it is true, but he says the streets were lighted and that there were lights on the cars. The case just cited asserts the rule to be that the rate of speed of moving cars may be shown by the opinion of a witness who saw the cars in motion. Such an opinion no more involves a question of science than does an opinion concerning the speed of a horse. One who sees a moving train and possesses a knowledge of time and distance is competent to express an opinion as to the rate of speed at which the train is moving. [Railroad v. Van Steinburg, 17 Mich. 99.] See also Pence v. Railroad, 42 Am. & Eng. R. R. Cas. 126. The opinion of one who has never timed moving cars may not be as rehable as the opinion of one who has had such experience, but that goes to the weight and not the competency of the evidence.”

The witness in that case was not shown to have been an expert upon the question of the speed of trains, but gave his opinion as to the speed it was going, simply from seeing it run.

Judge Lamm in the Stotler case adds: “Obviously it would be nonsense to say that a rate of speed could only be shown by expert testimony. If that were so, then a plaintiff injured by negligent speed, who was so unfortunate as to have no premonition of his coming fate, and who, therefore, had omitted to provide himself with experts at hand and so located as-to see the train and judge of its speed at the critical time, would be in hard lines, indeed. The story of such a case would run thus: no experts, no ease.”

We are therefore of the opinion that the trial court erred in rejecting the evidence offered by appellant.

II. Counsel for appellant also insists that the court erred in holding as a matter of law that the driver of the carriage was guilty of negligence,-which directly contributed to the injury.

There can be no question but what that ruling of the court was erroneous, without the testimony of the driver; which was to the effect that, when he was twenty-two feet from the track, he saw or could have seen a car approaching at Olive street, two blocks away; and that he was driving about eight miles an hour, and could have stopped the carriage in a space of eight or ten feet.

Upon that evidence, counsel for respondent insist that if the driver when twenty-two feet east of the track saw the car, or could have seen it two blocks away and could have stopped the carriage in eight or ten feet, and failed to do so, then he was guilty of negligence as a matter of law. In other words, it is contended that the driver’s own testimony shows that he had ample time and space within which to have stopped the carriage, and thereby have avoided the collision, and having failed to so do, he was guilty of negligence as a matter of law. That is, if he saw the car at that distance and did not stop, he was 'guilty of negligence in not doing so, and if he could have seen it by looking, but did not do so, then he was guilty of negligence in fading to look.

If the foregoing evidence upon which counsel for respondent predicate that insistence was all the testimony bearing upon that point then that insistence would undoubtedly be sound, but unfortunately for respondent, that was not all the evidence bearing upon that question, for the record shows that the heads of the horses were only eight or ten feet from the track when the driver was twenty-two feet from it; that is, he was the length of the horses plus the space between them and Mm further from the track than were the heads of the horses.

That being true and coupled with the further fact, wMeh the evidence tended to show, that the driver could not have stopped the horses under eight or ten feet; their heads would have been right in the line, of the track, had he stopped them witMn that distance;. and had he done so under that state of facts, the car. wMch projects a foot or two over the rail would have struck the horses’ heads, and what would have been the result of that, no one can tell.

,But that is not all, the evidence for appellant, further tended to show that the driver did not realize or discover that the car was ruiming in excess of the ordinance speed, until the team was witMn three feet of the track, which fact made it impossible for him to have stopped in time to have avoided the collision if he could not have stopped the team under eight or ten feet as the evidence tended to show; and until he discovered the speed of the car, the driver had the right to presume and to rely upon the presumption, that the car was not running in excess of the speed prescribed by the ordinance. If the speed of the car had not exceeded that fixed by ordinance, then clearly under the evidence in this ■ case the collision would not have occurred.

Consequently, we must hold that the court erred in holding as a matter of law, that the driver was guilty of negligence. That was- a question of fact which should have been submitted to the jury by appropriate instructions given by the court.

This proposition is therefore ruled in ‘behalf of appellant.

III. This brings us to the consideration of the last proposition presented; namely, Was the negligence of the driver of the carnage in which the appellant and her husband were seated, imputable to her?

The trial court not only held that the driver of the carriage was guilty of negligence as a matter of law, but also that his negligence was imputable to appellant.

In view of our holding on the second proposition in the case, as stated in the second paragraph hereof, this ruling of the trial court was also erroneous, for the reason the court had no right to impute the negligence of the driver to the appellant, at least, until after it has been determined that he was guilty of negligence.

But independent of that holding, counsel for appellant contends that .even though it be conceded that the driver was guilty of negligence which contributed to the injury, névertheless, appellant is entitled to a recovery in this case for any injury she may have received by tbe negligence of tbe respondent, for tbe reason that the driver’s negligence is not imputable to her. Upon the other hand counsel for respondent insist that the driver was not only the servant of the husband, but was also that of the appellant. We have heretofore set forth the evidence bearing upon that question as stated by counsel for respondent, in their statement of the case.

The law in this State is well settled, as well as in many of the others, that the negligence of neither the husband nor that of his. servant is imputable to that of the wife. [Shultz v. Railroad, 193 Mass. 1. c. 316.]

After an extended review of the authorities in that case, the court concluded with the following language: “But the great weight of authority is in favor of the proposition that the negligence of a husband is ordinarily not imputed to his wife, in case she is injured by .his and another’s concurring negligence.”

That is the general rule, not only between husband and wife, but also between all others, as will be seen from a consideration of the following cases: [Stotler v. Railroad, 200 Mo. l. c. 146-148; Becke v. Railroad, 102 Mo. 544; Sluder v. Railroad, 189 Mo. l. c. 138 et seq.; Loso v. Lancaster County, 77 Neb. 466; McBride v. Railroad, 109 N. W. (Ia.) 621-622; Bailey v. Centerville, 115 Iowa, 273; Willfong v. Railroad, 116 Iowa, 548; Louisville, N. A. & C. R. Co. v. Creek, 130 Ind. 139; Chicago, etc., R. Co. v. Spilker, 134 Ind. 380; Lake Shore, etc., R. Co. v. McIntosh, 140 Ind. 261; Indianapolis, etc., R. Co. v. Johnson, 163 Ind. 518; Reading Township v. Telfer, 57 Kan. 798; Neal v. Rendall, 98 Maine, 69; Finley v. Railroad, 71 Minn. 471; Whitman v. Fisher, 98 Maine, 577; Lammers v. Railroad, 82 Minn. 120; Teal v. Railroad, 96 Minn. 379; Flori v. St. Louis, 3 Mo. App. 231; Hedges v. Kansas City, 18 Mo. App. 62; Munger v. Sedalia, 66 Mo. App. 629; Hajsek v. Railroad, 68 Neb. 539; Harris v. Uebelhoer, 75 N. Y. 169; Platz v. Cohoes, 24 Hun, 101, affirmed 89 N. Y. 219; Hoag v. Railroad, 111 N. Y. 202; Metcalfe v. Railroad, 12 App. Div. 147; Hennesy v. Railroad, 73 Hun, 569; Davis v. Guarnieri, 45 Ohio St. 470; Gulf, etc., R. Co. v. Greenlee, 62 Tex. 344; Schouler’s Dom. Rel. (5 Ed.), secs. 34-50; Sheffield v. Central Union Tel. Co., 36 Fed. 164; Shaw v. Craft, 37 Fed. 317; Petersen v. Transit Co., 199 Mo. 331; Noyes v. Boscawen, 64 N. H. 361; Lapsley v. Railroad, 50 Fed. 172, 51 Fed. 174; Johnson v. St. Joseph, 96 Mo. App. l. c. 671; Southern Railroad v. King, 128 Ga. 383; Shultz v. Railroad, 193 Mass. 316; Dickson v. Railroad, 104 Mo. l. c. 504.

However, the general rule before stated has this exception or qualification, viz.: that negligence of a servant is imputable to the master, and if the latter is injured ■ through the concurring negligence of the servant and that of some third person, then the negligence of the servant is imputable to the master and will bar his right of recovery as completely as if his own negligence had contributed to his injury.

In the case at bar, as in all other cases, the burden of proof is upon the party who alleges the fact to prove that the driver of the carriage was the servant of the appellant. While there is some evidence which tends to show the driver was her servant, yet there was equally as much, if not more, which tended to show that he was the servant of the husband and not that of the appellant. Certainly it was not so conclusively shown that he was her servant, in a legal sense, as justified the trial court to so declare, as a matter of law, as it must have done in this case. At most, the evidence upon that question was vague, general and uncertain in meaning, and clearly insufficient upon which to predicate a demurrer.

This ruling of the court was also erroneous/

We therefore reverse the judgment and remand the cause for a new trial.

All concur, except Graves, J., who dissents as to result in separate opinion.

DISSENTING OPINION.

GRAVES, J.

I concur in the first paragraph of the opinion written by our brother Woodson. I do not concur in the second paragraph, because as I read the evidence in the record, the driver was guilty of negligence as a matter of law. As I read the evidence showing the surroundings and what was done by the driver, the trial court had a right to say as a matter of law that there was negligence upon the part of the driver, which contributed to the injury of plaintiff.

Nor do I concur in all that is said in the third paragraph of the opinion. I therefore dissent as to the result.


author: FERRISS, J. WOODSON, J.

text:
    THE STATE ex rel. W. A. THRASH et al. v. FRED LAMB, Judge.
    In Banc,
    November 27, 1911.
    1. PROHIBITION: Demurrer: Admission. Where a writ of prohibition issues, and respondent, for return, demurs thereto, asserting that the petition does not state a cause of action, whereupon relators pray judgment, all the facts well pleaded, both in the bill filed in the circuit court asking for the writ of injunction which issued, and in the petition filed in the Supreme Court asking for the writ of prohibition, must be taken as true.
    2. INJUNCTION: Public Nuisance: Prosecuting Attorney: Bond. A court of equity has authority to issue a temporary injunction, without bond, to enjoin a public nuisance, upon the filing, by the prosecuting attorney, in the name of the State, proceeding ex officio, of a bill setting forth such nuisance and charging its maintenance by defendants. The right of the State to abate a public nuisance by proceedings in equity to enjoin is beyond question; the prosecuting attorney has authority by virtue of his office to institute such suit; and the statute expressly provides that no bond shall be required in any injunction suit instituted by the State in its own behalf.

      3. PROSECUTING ATTORNEY: Authority to Represent State: Injunction: Public Nuisance: Bond. The history of legislation shows that since 1825 it has been the policy, as indicated by the various acts passed by the Legislature, to impose upon the local State’s attorney, whether known as circuit or prosecuting attorney, the duty of instituting proceedings in behalf of the State in matters arising within his local jurisdiction. The prosecuting attorney represents the State and exercises powers analogous to those exercised by the Attorney-General of England. He has authority, given by statute, to institute injunction suits, ex officio, in the name of the State, without giving bond, to enjoin and abate a public nuisance arising within his county. As to matters arising within his county his act in instituting a suit ex officio is the act of the State; and as the statute speeificially exempts the State from the requirement to give bond for a temporary injunction, it exempts him.
    4. INJUNCTION: No Bond: Defendants Without Remedy: Prohibition. Although the prosecuting attorney is authorized by law to institute suit, in behalf of the State, to enjoin a public nuisance, and can proceed without bond, yet as the absence of a bond may work great hardship on the defendants in an injunction in case the bill is ultimately dismissed, the Supreme Court, if defendants apply to it for a writ of prohibition against the judge issuing the temporary injunction, will closely scrutinize the proceedings, and prohibit and stop them, should it clearly appear that a legal wrong is about to be committed for which there is no other adequate remedy.
    5. -: To Prohibit Crime: Coupled with Public Nuisance: Selling Liquor in Restaurant: Disorderly House. A court of equity has no jurisdiction to enjoin the commission of a crime; but it has power to enjoin a public nuisance, and if the things charged in the petition for injunction constitute a public nuisance-, the writ will not be withheld merely because the act or some of them when committed would be a crime. Where defendants, in the petition for injunction by the prosecuting attorney proceeding ex officio, are charged with keeping a disorderly house, namely, in keeping as a blind and a sham and a subterfuge a restaurant which, because of the sale therein of intoxicating liquors, has be- ' come the resort of idlers and dissolute, immoral and dangerous persons, whose continuous disorderly conduct tends to the injury of the public morals, peace and welfare, and these charges are admitted by the state in which the pleadings in the Supreme Court for a writ of prohibition against the judge issuing the injunction appear, equitable relief to enjoin the public nuisance will not be withheld simply because the charge of selling intoxicating liquors is a charge of a crime in violation of the Local Option Law for which the State has an ample remedy by a criminal prosecution. Nor will it be withheld because, on a subsequent trial for a violation of the Local Option Law, defendants were acquitted. Their conduct, admitted by the pleadings, constitutes a public nuisance, to suppress which a court of equity has unquestioned power. The purpose of the suit is not to enjoin a violation óf the Local Option Law,' or to enjoin the conducting of a legitimate restaurant business, but. to enjoin the things charged constituting a disorderly house.

      Held, by WOODSON, J., dissenting, that viewing the petition for the injunction in the most unfavorable light for defendants it simply charged they were selling intoxicating liquors in violation of -law in a private house, and that constitutes a crime under the-criminal laws of this State, and in no sense a public nuisance; but the circuit court had jurisdiction to hear and determine the sufficiency of 0 the petition to charge a public nuisance, and for that reason the writ of prohibition should be denied.
    6. -: -: -: -: -: Sufficiency of Pleading: Prohibition. Whether the petition for injunction attempting to charge a public nuisance measures up to a full legal sufficiency, and whether the order made in response thereto is too broad, are questions which should, in the first instance, be addressed to the chancellor; and where the petition charges a public nuisance or nothing, the Supreme Court will not prohibit him from proceeding by injunction, since he has jurisdiction over the subject-matter, and in refusing to modify the order he was acting within his jurisdiction.
    7. -: -: -: -: -: Refusal to Modify Order: To Permit Continuance of Restaurant. Where a restaurant is operated as a public nuisance as one of its elements, the legitimate part of its operation will not so leaven the whole as to save the whole from abatement. Where the order enjoining defendants from conducting their restaurant on a certain lot did not forbid them from conducting a legitimate restaurant business at any other place, a refusal of the chancellor to sustain a motion to modify the order so as to allow them to continue their lunch business, is not oppressive, if it is obvious, in the light of the averments of the bill, that such modification, if made, would place the defendants where they were before the order was issued —that is, would be to authorize a lunch stand as a blind for the illegal sale of liquor, and leaving the order effective only to restrain the illegal sale of liquor and, hence, changing it into a defiance of the rule aginst enjoining the commission of a crime.
    8. -: -: -: Notice. Where at a hearing on ehe motion to modify the temporary restraining order had three days after the order was issued, an opportunity was given to present all matters competent at a preliminary hearing, it was not an abuse of the chancellor’s jurisdiction to grant the temporary order without notice to defendants and a preliminary hearing.
    Prohibition.
    Writ denied.

      John D. Taylor for relator.
    (1) “Prohibition is an extraordinary remedy and will not he where the party claiming it has adequate remedy by ordinary means, and the ordinary m'eans that will defeat the application for this writ must be sufficient to afford the relief the case demands.” State ex rel. v. Aloe, 152 Mo. 483; State ex rel. v. Eby, 170 Mo. 497; State ex rel. v. Denton, 128 Mo. App. 314. (2) The matters complained of in the petition for the injunction are immoral or criminal acts, and injunction is not a proper remedy for the suppression of acts merely immoral or criminal. State ex rel. v. Uhrig, 14 Mo. App. 413; State ex rel. v. Schweickhardt, 109 Mo. 496; State ex rel. v. Canty, 207 Mo. 456; (3) The matters complained of in the petition for injunction is that relators are selling intoxicating liquors in violation of the Local Option Law. The Criminal Code of Missouri, and Sec. 7246, R. S. 1909, furnish an adequate remedy for the suppression of the matters complained of. A court of equity will not interfere where there is an adequate remedy at law for the suppression of the matters complained of. State v. Crawford, 28 Kan. 726; State v. Vaughn, 81 Ark. 117; State v. O’Leary, 155 Ind. 526. (4) Injunction should not be granted on ex parte application, thereby destroying plaintiff’s business and resulting in a loss of the property without opportunity for the persons enjoined to be heard. 1 Spelling Ext. Legal Rem. (2 Ed.), art. 381; 6 Am. & Eng. Ency. Law (2 Ed.), 347; Scheurieh v. Light Company, 109 Mo. App. 430. (5) A restaurant business is not a nuisance per se, and it is wholly within the province of a jury to determine what constitutes ■ a nuisance; and until some complaint has been made of some special injury, or until the State has indicted, tried' and convicted persons sought to be enjoined for maintaining a nuisance, and until it has been clearly demonstrated that there is no adequate remedy at law for the suppression of grave immoral and illegal acts which have become or may become especially injurious to the public or to the rights of person or property of some individual, should a court of equity invade the field of criminal law. 1 Spelling Ext. Legal Rem. (2 Ed.), art. 356; State v. Crawford, 28 Kan. 726; State v. O’Leary, 52 L. R. A., 299. (6) The granting of the interlocutory injunction was a violation of relators’ rights guaranteed them under Secs. 4 and 30, art. 2, Constitution of Missouri. (7) The granting of an injunction as prayed for in the petition filed is in violation of Secs.-12 and 28, art. 2, Constitution of Missouri.

      Roy W. Rucker, Forrest O. Ferris and Wm. H. Wallace for respondent.
    (1) A house where persons are accustomed to assemble, and acts committed or practices indulged in which are injurious to the peace or the health or the morals of 'the people, is a public nuisance. Such a place becomes a nuisance of the most aggravated type when the inevitable result is to injure the peace, health and morals all combined, as is admitted by the pleadings in the case at bar. State v. Canty, 207 Mo. 439; Mugler v. Kansas, 123 U. S. 623; Kansas v. Ziebold, 123 U. S. 637; State v. Ingram, 118 Mo. App. 327. (2) The maintenance of an unlicensed tippling house, to the annoyance or injury of any portion of the inhabitants of the State, is a nuisance in violation of Sec. 4800, R. S. 1909, relating to nuisances. State v. Ingram, 118 'Mo. App. 323. (3) By authorities cited in point one, supra, to conduct without license a place oí business whose tendency is to deprave public morals, is to maintain a nuisance. The following authorities hold that the use of intoxicating liquors tends to deprave public morals. . Austin v. State, 10 Mo. 593; State v. Seebold, 192 Mo. 727; State ex rel. v. Hill, 84 Mo. App. 18; State ex rel. v. Hudson, 78 Mo. 302; State v. Bixman, 162 Mo. 1; Black on Intoxicating Liquors, see. 24; opinion of Chief Justice Tawney in License Cases, 5 Howard, 577; Opinion of Mr. Justice McLean, same volume, pages 588, 589; Opinion of Mr. Justice Woodbury, p. 628, same volume; Opinion of Mr. Justice Grier, pp... 631, 632, same volume; Mugler v. Kansas, 123 U. S. 658; Cooley on Const. Law (4 Ed.), 727. (4) Our statute on the subject does not undertake to cover all cases of public nuisances, and as to those not provided for by statute, the common law remains in force. State v. Boll, 59 Mo. 321; State v. Ingram, 118 Mo. App. 327. (5) If the case of State v. Ingram, 118 Mo. App., declaring specifically that an “unlicensed tippling house maintained to the annoyance or injury of any portion of the inhabitants of this State” is a nuisance, under our statute, is overruled by this court, then we submit that the petition for the injunction in the case at bar abundantly charges also a disorderly house which is a nuisance at common law if not by statute in Missouri. State ex rel. v. Dykeman, 153 Mo. App. 416; State ex rel. v. Canty, 207 Mo. 454; Cheek v. Com., 79 Ky. 359; 1 Wood on Nuisances (3 Ed.), secs. 37, 38. (6) We have in the case at bar a nuisance maintained by outlaws. State v. Seebold, 192 Mo. 727; State v. Ingram, 118 Mo. App. 327; Austin v. State, 10 Mo. 591; State v. Bixman, 162 Mo. 1; Barnett v. Pemiscot County, 111 Mo. App. 693. (7) A court of equity has power and will enjoin the continuance of a public nuisance. State v. Canty, 207 Mo. 439; Mugler v. Kansas, 123 U. S; 1. c. 672. (8) Equity -will not refuse to lend its aid, although the nuisance sought to be enjoined is also a crime. And in the case at bar it will not deny its relief because the sale of liquor without license is a criminal offense, punishable under our statute. State v. Canty, 207 Mo. 439; Mugler v. Kansas, 123 U. S. 623; Kansas v. Ziebold, 123 U. S. 654; People v. St. Louis, 48 Am. Dec. (Ills.) 340; 2 Story’s Eq., secs. 921, 922; Story’s Equity Jurisprudence (13 Ed.), secs. 921, 923, 924. (9) Relators’ contention that their property rights are being invaded is untenable. Mugler v. Kansas, 123 U. S. 623. (10) No bond is required of the State in a case like this. State ex rel. v. Railroad, 221 Mo. 227.
   FERRISS, J.

This is an original proceeding by petition for a writ of prohibition against the respondent, judge of the 12th Judicial Circuit, prohibiting him from proceeding further, in the exercise of jurisdiction in the case of The State at the relation of Roy W. Rucker, prosecuting attorney of Chariton county, against the relators.

It appears from the petition filed by relators that they were for some time prior to July 3, 1911, owning and operating a lunch stand and soft drink establishment in the city of Keytesville, Chariton county, under a license from that city; that on said third day of July, Roy W. Rucker, prosecuting attorney, presented the following petition to the respondent circuit judge:

State of Missouri ex rel. Roy W. Rucker, Prosecuting Attorney of Chariton County, Missouri, Plaintiff, v. W. P. Thrash, Aubrey Thrash and R. P. Carroll, defendants.
Comes now the above named plaintiff, by Roy W. Rucker, prosecuting attorney, in bebalf of tbe State of Missouri, and states:
That on tbe 24tb day of April, 1908, tbe act of tbe Legislature of tbe State of Missouri, approved April 5, 1887, now Article 3 of tbe Revised Statutes, 1909, of said State, commonly known as the Local Option Law, was adopted in said county of Chariton, and that said Local Option Law was in full force and effect in said county at all times and dates hereinafter mentioned.
That the defendants, W. P. Thrash, Aubrey Thrash and R. P. Carroll, on a date to this plaintiff unknown, moved into and occupied the first floor of the premises known as the Hans-man and Schell building, located in lot one, on Bridge street, in the city of Keytesville, Chariton county, Missouri, with the avowed and pretended intention of conducting a restaurant and lunch room therein.
Plaintiff states that defendants opened up said pretended restaurant and lunch room as a mere subterfuge, and that they have, in fact, for themselves and by their officers, agents, servants and employees, openly and in violation of the laws of the State of Missouri, and particularly of what is known as the Local Option Law, engaged in storing for and selling and disposing of to the public intoxicating liquors and intoxicating beverage, containing alcohol, on every day of the week, including Sundays from on or about the 1st day of June, 1910, up to the time of the filing of this petition herein, and have since on or about the 1st day of June, 1910, until the present time, engaged in the business of selling intoxicating liquors, to-wit, beer and whiskey and intoxicating beverages containing alcohol, called grape juice and manitou, in said premises, without any legal authority to sell the same.
And plaintiff further states that said intoxicating liquors and intoxicating beverages, containing alcohol, were so, as aforesaid, disposed of and sold by the said defendants, their officers, agents, servants and employees indiscriminately to all persons offering to purchase the same.
Plaintiff states that the illegal sale of intoxicating liquors and intoxicating beverages, containing alcohol, as aforesaid, causes and has caused a large number of idle, lawless, turbulent, dissolute and immoral and dangerous persons, addicted to the use of ardent spirits, to be attracted to and assembled at the defendants’ said premises, and that by reason thereof much disorderly conduct, tending to destroy the public morals of the community, and to the prejudice of the good name and general welfare of the people, has been indulged in on the said premises.
Plaintiff further states that the acts herein complained of are continuing from day to day and from week to week, and are contrary to the good morals, public peace and general welfare of the people of the State, and constitute a continuing violation of the law, and are a public nuisance; that indictments have been returned against all of the above named defendants, charging them with the violation of the Local Option Law, and that said prosecutions are now pending against those defendants, but that because of the nature of the cases such proceedings cannot be determined for several months, and that in the meantime the defendants will be free'to continue in the unlawful and immoral acts herein complained of.
Wherefore, the premises considered, the plaintiff prays that the defendants, their officers, agents, servants and employees, be perpetually restrained and enjoined from conducting said restaurant and lunch room, and from selling or disposing of intoxicating liquors or intoxicating beverages, containing alcohol, at their premises in the city of Keytesville, Chariton county, Missouri, or at any place in said county.
And plaintiff further prays, in the interest of the public morals and the enforcement of the laws, that the defendants, their officers, agents, servants and employees, immediately be restrained from continuing the acts and things herein com- ■ plained of, and that a temporary injunction be so granted pending the final hearing of the cause, and for such other relief as to the court may seem proper.
Rot W. Rucker,
Prosecuting Attorney
of Chariton County, Missouri.
State of Missouri, County of Chariton, ss.
Roy W. Rucker, prosecuting attorney of Chariton county, Missouri, makes oath and says that the facts and statements contained in the foregoing petition are true to the best of his knowledge and belief.
Rot. W. Rucker.
Subscribed and sworn to before me, this ________ day of May, 1911. W. L. Wright,
[seal] - Circuit Clerk.

That thereafter the respondent, without notice to relators, and without knowledge of the facts alleged in the petition, granted a restraining order which, after reciting the allegations of the petition, runs thus:

And it appearing that the said petition was on the 19th day of May, 1911, filed with the circuit clerk of Chariton county, Missouri, and the undersigned judge, having seen and heard said petition, and it' appearing that plaintiff, upon the facts stated in the petition, is entitled to the relief prayed for, it is ordered that a temporary injunction be granted enjoining defendants, • their agents, servants and employees from conducting their said restaurant and lunch room, located in lot one and block one, on Bridge street, in the city of Keytesville, Chariton county, Missouri, and from selling and disposing of intoxicating liquors and intoxicating beverages containing alcohol, at their premises in the city of Keytesville, Chariton county, Missouri, or at any place in said county, until the further orders of the circuit court of Chariton county, Missouri.
It is 'further ordered that a copy of this order, certified to by the clerk of the circuit court of Chariton county, Missouri, be served upon the defendants.
Given under my hand this 3rd day of July, 1911.
Fred Lamb,
Judge of the Circuit Court of Chariton County, Missouri.

That on July 6th relators moved the court to so modify the order as to allow them to conduct their restaurant and lunch counter business, which motion was denied; that by reason of the fact that no hearing can be had before the next September term, and “because of the nature of their stock of goods, the same will be spoiled and totally ruined in that time”; that by reason of the fact that the petition was filed by the prosecuting attorney in the name of the State, no bond was required, and that they have no remedy for the loss that they may suffer by reason of this confiscation of their property; that same is without due process of law, and violative of section 30 of article 2, and section 4 of article 2, of the State Constitution; that under the Constitution and laws of the State ample and adequate means are offered for the prevention of the matters charged as aforesaid by means of criminal prosecutions; that this injunction violates sections 12 and 28 of article 2 of the State Constitution. Here follow several allegations of legal conclusions, charging violation of the rights of relators, not material, and which it is unnecessary to set forth.

On July 17, 1911, our prehminary rule in prohibition issued. On October 10, 1911, respondent for return filed the following demurrer:

“Respondent herein demurs to relators’ petition filed herein for the following reasons:
“Because the.petition does not state facts sufficient to constitute a cause of action.
“Because1 the facts stated in the petition do not entitle relators to the relief prayed for, or to any relief.
“Because the facts stated in the petition show that respondent was proceeding in a matter of which he had jurisdiction, and that he was acting within the scope of his power and authority.”

• Whereupon relators pray judgment, notwithstanding the return.

Upon this record relators contend, first, that the circuit court was without jurisdiction to issue the preliminary injunction, because no bond was given, and, second, that the order made was in excess of jurisdiction.

As the pleadings stand, all the facts well pleaded both in the bill filed by the prosecuting attorney and in the petition by the relators here must be taken as true.

I. The prosecuting attorney, proceeding ex officio, in the name of the State, filed a bill against relators to enjoin a public nuisance, and, without giving bond, secured a temporary injunction.

Section 2522, Revised Statutes 1909, provides that “no injunction, unless on final hearing or judgment, shall issue in any case, except in suits instituted by the State in its own behalf, until the plaintiff, or some responsible person for him, shall have executed a bond,” etc.

We have heretofore decided that a court acts in excess of its jurisdiction when it issues a preliminary injunction, without bond, in a case where such bond is required by statute. [State ex rel. v. Williams, 221 Mo. 227; City of St. Louis v. St. Louis Gaslight Co., 82 Mo. l. c. 353.]

The question here is whether the suit was “instituted by the State in its own behalf.” If the State in its own behalf may institute a suit to enjoin a public nuisance, and if the prosecuting attorney had authority by virtue of his office to institute such suit, no bond was necessary. The right of the State to abate a public nuisance by proceedings in equity to enjoin is beyond dispute. In State ex rel. v. Canty, 207 Mo. 439, we accept as a correct statement of the law the following citation from 4 Pomeroy’s Eq. Jur. (3 Ed.),see. 1349: “A court of equity has jurisdiction to restrain existing or threatened public nuisances by injunction, at the suit of the Attorney-General of England, and at the suit of the State, or the people, or municipality, or some proper officer representing the commonwealth, in this country.”

Section 1007, Revised Statutes 1909, provides that prosecuting attorneys “shall commence and prosecute all civil and criminal actions in their respective counties in which the county or State may be concerned.”

In determining the powers of the prosecuting attorney in this regard, under the present state of the statute law, it will be instructive to review the history of our legislation concerning the duties of attorneys authorized to institute proceedings in behalf of the State.

In 1806, the law provided for an Attorney-General for the territory which subsequently became the State of Missouri, whose duty it was to prosecute in said Territory “all pleas, civil and criminal, in behalf of the United States or of said Territory,” with authority to appoint deputies in the several districts in the Territory. [Territorial Laws, p. 67.] In 1815, the Governor was authorized to appoint a circuit attorney in each of the circuits in the Territory. [Territorial Laws, p. 358.] In Geyer’s Digest of 1818, the foregoing Act of 1806 is appended to the Act of 1815, as section 2 of the article “Circuit Attorneys,” as follows: “It shall be the duty of the said Attorney-General (circuit attorneys) ■ to prosecute in said Territory all pleas, civil and criminal, in behalf of the United States or of said Territory.” By bracketing the words “circuit attorneys,” the law was construed to impose on the several circuit attorneys the duties which had been imposed upon the Attorney-General by the Act of 1806. [Geyer’s Digest, p. 118.] In 1820, an act was passed directing the Attorney-General to give opinions to the executive officers, and to conduct all suits “in which the State may be concerned..... in the circuit in which the seat of government may be,” and providing, further, that within such circuit he should perform the duties of the circuit attorney. [Territorial Laws, p. 688.] This act also provided for the appointment of a circuit attorney in each of the several circuits of the State “who shall in their respective circuits do and perform all and singular the duties heretofore required of the' territorial circuit attorneys and Attorneys-General.” In 1824, an act was passed authorizing the Attorney-General to conduct all suits in which the State was concerned in the circuit within which should be located the seat of government, and that in other circuits the circuit attorneys should “commence and prosecute all actions, suits, processes and prosecutions, civil and criminal, in which the State or any county may be concerned” within his circuit. [Revision of 1825, p. 156.] In 1835 was passed an act providing that the Attorney-General should reside at the seat of government, and advise the State officers and Assembly, and “shall act as circuit attorney for the circuit in which the seat of government is, and in said circuit shall perform the duties required by law of circuit attorneys.” This act prescribed the duties of circuit attorneys in their respective circuits, the same as above quoted from the Revision of 1825. [R. S. 1835, p. 88.] Similar provisions are found in the Revised Statutes of 1845, p. 156. In the Revision of 1855, p. 273, the authority in the Attorney-General to act as circuit attorney in the circuit within which the seat of government is located is omitted. His duties are of an advisory character simply, except that it is made his duty to represent the State in the Supreme Court on appeals and writs of error. No authority is given him to institute actions. The duties of the circuit attorneys remain the same. No substantial change appears in the Revision • of 1865, p. 141.

In 1868 (Laws 1868, p. 11), the following act was passed, and appears in 1 Wagner’s Statutes of 1872, p. 202: “The Attorney-General shall be, and he is hereby authorized and empowered, in the name and in behalf of the State of Missouri, to institute and prosecute all suits and other proceedings at law and in equity requisite or necessary to protect the rights and interests of the State and to enforce any and all rights, interests or claims of the State against any and all persons, bodies politic or corporate.”

In 1872 (Laws 1872, p. 13), the Legislature abolished the office of circuit attorney, and provided for the election in each county of a prosecuting attorney, “who shall perform the duties now devolving by law on the circuit attorneys and county attorneys.” Since the passage of this law the duties of prosecuting attorneys relating to proceedings in which the State is concerned have been in substance similar to those imposed on circuit attorneys by the former laws.

The history of this legislation shows that, since-1825, it has been the policy of this State, as indicated by the various acts passed by the Legislature, to impose upon the local State’s attorney, whether known as the circuit or prosecuting attorney, the duty of instituting-proceedings in behalf of the State in matters arising within his local jurisdiction. From 1824 to 1855 the Attorney-General acted as circuit attorney in the-circuit within which the seat of government was located. From 1855 to 1868 the Attorney-General had no such power. During that period the right to institute proceedings in behalf of the State was in the circuit attorneys exclusively. Since 1868 the statutes have been substantially as they are now; section 1007, Revised Statutes 1909, authorizing the prosecuting attorney to commence proceedings in matters concerning the State within' his county, and- section 970, Revised Statutes 1909, imposing duties upon the Attorney-General in substance like those provided in the Act of 1868 above quoted.

Whatever may be the' proper construction of section 970 as to the duties of the Attorney-General, it is clear that during all the time since the early territorial days the local State’s attorney has been the proper legal representative of the State to institute proceedings in behalf of the State, and in no respect has that power been curtailed by legislation.

In a strict historical sense, the prosecuting attorney represents the State and exercises powers analogous to those exercised by the Attorney-General in England. As was said by the Supreme Court of Michigan: “The prosecuting attorney is a very responsible officer, selected by the people and vested with personal discretion intrusted to him as a minister of justice, and not as a mere local attorney.” [Engle v. Chipman, 51 Mich. 524.]

The sovereign power of government can only be exercised through its officers. Consequently, to each officer is delegated some' of the powers and functions of government. Usually a discretion that is within the power granted to an officer cannot be controlled by other officers. It has been held, for instance, that mandamus will not issue to control the discretion of the Attorney-General as to whether or not he should institute quo warranto proceedings. [People v. Attorney-General, 41 Mich. 728.] A prosecuting attorney has discretionary power to institute or discontinue prosecutions. [1 Bish. New Crim. Proc., sec. 287.] He may file informations without leave of court (State v. Kyle, 166 Mo. l. c. 306), wherein we cite and approve the following from Bishop’s New Crim. Proe., sec. 144: “The powers which in England are exercised by the Attorney-General and the Solicitor-General are largely distributed among our district attorneys.” Mr. Bishop further states the law thus: “The functions of the English Attorney-General are committed tó a prosecuting officer known in the different States as Attorney-General, State’s Attorney, District Attorney, or the like. To him, therefore, the power of nolle prosequi commonly pertains, to be exercised as in England free from judicial control. Not even, by the better practice, will the court advise this officer whether to employ it or not in the particular case.” [1 Bish. New Crim. Proc., sec. 1388, paragraph 2.] In Texas, the Supreme Court decided that a judge had no power to enter a nolle prosequi, or' dismissal of a case pending, against the objection of the district attorney. [State v. McLane, 31 Tex. 260.] So in New Hampshire the Supreme Court, speaking of the right of the prosecuting officer in this regard, says: “The law has lodged that duty-with the officer selected for that special purpose, and who are responsible for the manner in which they perform their duties. . . . His power to enter a nol. pros. is held virtute officii. He executes it upon his official responsibility.” [State v. Tufts, 56 N. H. 137.] “The court has no right to interfere with its exercise.” [Comm, v. Tuck, 20 Pick. 366; Same v. Smith, 98 Mass. 10.] In State ex rel. v. Rose, 84 Mo. 198, we held that a prosecuting attorney may file an information in.the nature of quo warranto, ex officio, without leave of court, but that when he prosecutes at the relation of an individual such leave is necessary. This upon the principle that when he acts ex officio, he is exercising the discretion which, the State has delegated to him, and, through him, the State may act without leave of court. We held in State ex rel. v. McMillan, 108 Mo. 153, that under the general power granted to the prosecuting attorney by section 1007, he could file an information ex officio in quo warranto, it being contended in that case that he derived his power to act solely from the - statute on quo warranto which authorizes him to file an information at the relation of some third person. These rulings proceed upon the theory that when the prosecuting attorney acts ex officio, the State is acting directly through him.

. It is clear that if the prosecuting attorney acts at all ex officio, he must act for and in behalf of the State. If he has power to act for the State, and institute proceedings at his discretion, as we think he has, then it follows that proceedings instituted by bim of the character in question are in behalf of the State, and that no bond is required. It will not do to say that the prosecuting attorney may ex officio properly institute injunction proceedings in behalf of the -State, and still be required to give bond. He has no right to institute the proceeding at all as prosecuting attorney unless he does so in behalf of the State. “Acts of public officers acting on behalf of the State, within the limits of the authority conferred on them, and in the performance of their duties, are the acts of the State.” [Throop on Public Officers, sec. 21.]

Whether the State is the proper party to institute this injunction proceeding is not in itself a jurisdictional question. This we decided in State ex rel. v. Zachritz, 166 Mo. l. c. 314, where we said: “Moreover, whether the State can maintain the action is a question to be raised and determined in the court where the case is pending; it does not go to the power or jurisdiction of the court, and its decision here could not furnish a basis for prohibition.” Again, in the case of State ex rel. v. Williams, 221 Mo. l. c. 263, we held to the same effect, namely, that whether the use of the name of the State by the prosecuting attorney was authorized was a question for the circuit court, and could not “avail here to show want of jurisdiction.”

But in order to get at the question whether a bond should be required to give the court jurisdiction, it becomes necessary to determine whether the prosecuting attorney had authority to institute the suit on behalf of the'State. If he had such authority, no bond was necessary, as we have shown above. We have been cited to the case of State ex rel. v. Williams, supra, as authority for the proposition that the prosecuting attorney has no right to institute this proceeding. We do not so regard that case. It holds that the circuit attorney of the city of St. Louis has no power to represent the State in matters outside of his circuit. That case, as we understand it, is authority for the proposition above enunciated regarding the power of a prosecuting attorney within his own county. In that case we said: “But while the Attorney-General may use the name of the State in any county of the State, in a proper case, it by no means follows that the circuit attorney of St. Louis, or a prosecuting attorney, or all prosecuting attorneys, may use the name of the State in enjoining or restraining corporate delinquencies or abuses . outside of their respective counties or city.” We said, further: “However, it is perfectly obvious that the subject-matter of the action is not something that pertains solely to the city of St. Louis, but is intended to enjoin railroads that do not approach ‘the said city from any direction, and are many miles distant therefrom.” The decision in that case proceeds distinctly upon the theory that the circuit attorney of the city of St. Louis is limited to the eity of St. Louis in exercising his power to institute proceedings in behalf of -the State. In the Williams case we referred with approval to the case of State ex rel. v. Saline County Court, 51 Mo. 350, where a proceeding* was instituted by the circuit attorney of that circuit to enjoin an issue of bonds, and we say in commenting on that ease: “The circuit attorney at that time was the representative of the State in the circuit in which Saline county was situated. That case affords no precedent for holding that the circuit attorney of St. Louis may institute such actions outside of St. Louis.” It is true that the opinion in the Williams case says that inasmuch as the circuit attorney was undertaking to act outside of his jurisdiction, he should have been required to give a bond before the temporary injunction was granted. That was upon the assumption that, outside of his jurisdiction, the circuit attorney could not represent the State, but was acting as an individual. What was said about the bond must be construed as applicable to the facts in the case. That case is no authority for the proposition that a prosecuting attorney must give a bond in an injunction suit instituted by him within his county concerning matters arising within his county.

Our conclusion is that the prosecuting attorney was authorized by law to institute a suit in the circuit court of Chariton county to enjoin, in behalf of the State, a public nuisance, and that he could proceed without giving bond. Considering, however, that the absence of a bond might work great hardship on the defendants in an injunction, in case the bill ultimately is dismissed, we should, if in such case parties apply here for prohibition, closely scrutinize the proceedings complained of and prohibit, should it clearly appear that á legal wrong is about to be committed for which there is no other adequate remedy. An observation by Valliant, J., in State ex rel. v. Aloe, 152 Mo. l. c. 483, is apt on this point. He says: “Prohibition is an extraordinary remedy and will not lie where the party claiming it has adequate remedy by ordinary means. But the ordinary means that will defeat the application for this extraordinary writ must be sufficient to afford the relief the case demands.” On the other hand, inasmuch as the State may lawfully proceed without bond, a situation may arise where loss without remedy will result from the failure of the State to sustain its proceedings, and this without any wrong, in a legal sense, against which prohibition would he. It may also be said that it is fair to assume that the court which grants the injunction without bond will fully appreciate its added responsibility, and act with due regard to the interests of the parties.

II. There is no question as to the jurisdiction of the- circuit court to enjoin a public nuisance. We are to consider only whether the facts pleaded justified action by the State, and, further, whether the action of the court was an abuse of or in excess of jurisdiction.

Relators concede, on this record, for the purposes of this case, that they were conducting a sham restaurant, where, under the guise of a legitimate, licensed, business, they were openly selling liquor in violation of law, and they point' triumphantly, in oral argument, to the fact that so far they have escaped conviction for such offense in the various criminal prosecutions heretofore instituted by the State. They concede, further, that their place of business, by reason of the illegal practices therein permitted, has become the resort of idlers and dissolute, immoral and dangerous persons, whose continuous disorderly conduct tends to the injury of the 'public morals, peace and welfare. Such conduct, as the court found, constituted a contim uing public nuisance. The relators, without denying the facts alleged in the bill, or disputing seriously the conclusion that they constitute such nuisance, seek to separate the elements which, together, constitute this nuisance, and insist that the court had no jurisdiction to enjoin either element so segregated. Relators* propositions are that the court cannot lawfully enjoin (a) the commission of a crime, i. e., the illegal sale of liquor, or '(b) the business of conducting a restaurant. The State is seeking by means of injunction to close this place, not primarily because of the illegal sale of liquor, nor because of the operation of a sham restaurant. These things are pleaded as the facts which underlie-the nuisance, namely, a disorderly house. The bill for injunction is bottomed on our ruling in the case of State ex rel. v. Canty, 207 Mo. 439, and seeks to restrain a public nuisance. The fact that this alleged nuisance involves selling liquor in violation of law, an offense that may be prosecuted under the criminal law, will not prevent an injunction against the nuisance. We have ruled many times that injunction will not he to prevent the commission of a crime. We said in the Canty case, speaking through Woodson, J., that “this court has uniformly held that a court of equity has no jurisdiction to enjoin the commission of a crime;” but Judge Woodson said further in that case (l. c. 459): “The contention of respondents that a court of equity has no jurisdiction to abate a public nuisance where the offenders are amenable to the criminal laws of the State, is not tenable.” And the court, speaking further through Valliant, J., says (l. c. 460): “A court of equity will not undertake to enforce the criminal law; therefore it will not enjoin the commission of a threatened act merely because the act would be a crime, but, on the other hand, neither will it withhold its equitable relief in a case in which, for other reasons, it has jurisdiction, merely because the act when committed would be a crime.”

There can be no serious contention that this injunction forbids a legitimate lunch business, in face of the record admission that the restaurant is a mere sham and subterfuge for the sale of liquor, but we apprehend that a lunch business, whether genuine or not, operated in connection with a public nuisance, and as one of its elements, would not so leaven the whole as to save it from abatement. If this petition states a case at all it states a public nuisance, and we think the facts therein alleged justify the discretion exercised by the State’s attorney in bringing the suit. Whether the pleadings measure up to full legal sufficiency, and whether the order made is too broad, are questions which should, in the first instance, be addressed to the circuit court. These are matters for correction there upon proper application. Relators recognized this rule by filing a motion to so modify the injunction as to allow them to continue their lunch business. They did not challenge the jurisdiction of the court, the sufficiency of the petition, or, otherwise than is sought by the motion to modify, the order itself. The order restrained the lunch business in the building complained of as the public nuisance only. There is no restraint so far as the restaurant is concerned as to any other place. The motion to modify was denied on July 6th, three days after the original order. Was this refusal to modify oppressive? We think not. The court was acting within its jurisdiction. In the light of the averments in the bill, it is obvious that such modification, if made, would have placed relators where they were before the restraining order was issued —operating a lunch stand as a blind for the illegal sale of liquor. It would, in effect, leave the restraining order standing against the sale of liquor alone, and, consequently, in defiance of the rule against enjoiuing the commission of a crime.

Counsel for relators frankly stated in argument that if that modification had been allowed, this proceeding for prohibition would not have been necessary. It may have appeared at the hearing on that motion, in fact, as it appears here by the admissions on the record, that there was no intention to conduct a bonafide lunch business, independent of the illegal sale of liquor and the maintaining of a public nuisance.

It is further urged by relators that because they were obliged to close their house on July 3rd, with no opportunity for a speedy hearing, their stock of goods would be ruined. Nothing is alleged as to nature or quantity of this stock. So far as the restaurant is concerned, there was a speedy hearing, to-wit, on July 6th, three days later. If the complaint in this regard refers to the wet goods carried by relators in their stock, we apprehend that the court would not exceed or abuse its jurisdiction in holding that time would not impair its value.

Eelators further claim that it was an abuse of jurisdiction to grant the restraining order without notice and prehminary hearing. In view of the fact that upon the record here there is no denial of the facts set up in the bill for injunction, we do not see how relators were injured by reason of the failure to give notice. The conclusion reached by the chancellor, after the hearing three days later, when an opportunity was given to present all matters competent on a preliminary hearing, indicates clearly that notice and hearing would have availed nothing to relators.

We think the demurrer should be sustained. ■ The facts alleged in the bill for injunction are not controverted, and no other facts are pleaded sufficient to show that the circuit court has exceeded or abused its jurisdiction.

The writ will be denied, the rule .herein discharged, and judgment entered in favor of respondent for costs.

All concur, except Woodson, J., who in a separate opinion concurs in the first paragraph and in the result.

SEPAEATE OPINION BY WOODSON, J.

WOODSON, J.

I concur in all that is said by my learned associate, Judge Ferriss, in paragraph one of his opinion filed herein.

I dissent as to that part of the paragraph two, which holds that, the business of the relators constituted a public nuisance.

Viewing the pleading in the most unfavorable light for the relators, it is simply shown that they were selling intoxicating liquors without a license in a private room.

That constitutes a crime under the criminal laws of this State, and not a public nuisance in any sense of the word, in my opinion.

However, I confess, that the majority opinion of the court in the case of State ex rel. v. Canty, 207 Mo. 439, holds that such conduct constitutes a public nuisance, to which I then dissented, and still dissent.

But independent of that question, the .circuit court of Chariton county had jurisdiction to hear and determine the case, and for that reason, I think the writ should be denied.


author: KENNISH, J. LAMM, J.

text:
    THE STATE ex rel. S. F. POWELL et al. v. J. W. SHOCKLEE et al., Judges of County Court of Montgomery County.
    In Banc,
    November 27, 1911.
    1. CERTIORARI: Practice: Motion for Judgment: Cause at Issue. In certiomrii the cause is at issue when relators, after the issuance of the writ and respondents’ return thereto,' file a motion for judgment on the pleadings.
    2. -: -: -: -: Right of Relators to Sue: Waiver. The right of relators to maintain the suit in certiorari may be raised or attacked by motion to supersede or quash the writ filed at any time before the cause is at issue; but where respondents file no such motion, but make their return, and relators thereupon file a motion for judgment on the pleadings, the cause is at issue, and respondents must be held to have waived the question of relators’ right to sue, and the cause must be heard on its merits. [Distinguishing State ex rel. v. Guinotte, 156 Mo. 513.]
    3. -: Judicial Matter Only: County Court: Removal of Office of Recorder. The writ of cerUomri will be available only when , the action sought to be reviewed is judicial in character; and in providing a suitable place, at a place other than the county seat, for a temporary office for the recorder of deeds, pursuant to the statute, the county court acts in an administrative or ministerial capacity, and its action in that behalf cannot be reviewed by the Supreme Court in a oertionwrU. ■

      4. -: -: -: Removal of County Officers and Courts. The county court record recites that the courthouse had been twice burned; that there was no courthouse or other suitable building at the county' seat in which to house and keep the various county offices, or in which to hold the courts or to transact the business of the county; that it was unsafe and dangerous to the records to keep them in the frame store building in which they were being kept, and it was insufficient for that purpose and afforded no room for holding the various courts of the county; and that the court was without funds at its disposal to build a courthouse or other building in which to transact the business of the county; and the court therefore ordered the sheriff to select and secure a building suitable for these purposes at a place as near the county seat as practicable, which he proceded to do. Held, that the law empowers the county court to establish a temporary county seat only in case the site of the former county seat has been washed away by a river; but the action of the court was administrative, and not judicial, in character, and, therefore the Supreme Court has no authority to review its action in a certiorari.

    5. COUNTY COURT: Removal of County Seat: Judicial Matters: Certiorari. Not every action'of the county court is judicial in character. It is the nature of the act which determines the propriety of the writ of certiorari, brought to quash its proceedings. Nor does the fact that its orders assume the form of adjudications affect the character of the function of government. Where the county court ordered the county seat to be moved but gave no notice, and no parties were before the court, and the court did not attempt to pass upon or determine personal or property rights as 'they existed at the time, the order was not attended by the incidents of a judicial proceeding, but its action was administrative or ministerial in character; and though no statute can be found authorizing such order, that action cannot be reviewed by the writ of certiorari.

    Certiorari.
    Writ quashed.

      P. E. Cullen for relators.
    (1) The county court did not have power to order all the county officers, courts and public records removed from the county seat, and the record should be quashed. This contest has been before this court several times before. State ex rel. v. Elkins, 130 Mo. 9; State ex rel. v. White, 162 Mo. 533. (2) The county court has no power to select a temporary county seat, except in cases where the seat of justice shall have been destroyed by erosion of the banks of any river. The specification, of this particular cause by a familiar rule of construction excludes all others. R. S. 1909, sec. 3674. (3) The order made by the county court of Montgomery county operátes to remove the county seat and the county court has no jurisdiction to make such an order. Constitution, art. 9, sec. 2. Even the Legislature of the State is by express constitutional provisions prohibited from passing any local or special law locating or changing county seats. Constitution, art. 4, sec. 53. (4) Under the Constitution and laws of the State, judicial power is vested in the county courts. Constitution, art. 6, sec. 36; Benton Co. v. Morgan, 163 Mo. 661; R. S. '1909, art. 5, chap. 351. (5) The office of a writ of certiorari is to bring to a superior court for review the record and proceeding’s of an inferior court, an officer, or a tribunal exercising judicial functions, to the end that the validity of the proceeding’s may be determined, excesses of jurisdiction restrained, and errors, -if any, corrected. It is not essential, however, that the proceedings should be strictly and technically judicial in the sense in which that word is used when applied to courts of justice, but it is sufficient if they are quasi judicial. It is enough if they act judicially in making their decision, whatever may be their public character. Herrick v. Arbela, 54 Iowa, 340; Welch v. Wetzel County Ct., 29 W. Va. 63; State ex rel. v. Johnson, 138 Mo. App. 314; State ex rel. v. Elkins, 130 Mo. 90; Snoddy v. County of Pettis, 45 Mo. 361; Owens v. County Court, 49 Mo. 372; State ex rel. v. County Court, 47 Mo. 594. (6) The terms “seat of justice” and “county seat” are synonymous, and as used in our Constitution and laws mean the place where the courthouse and county officers are located, the place where the courts are held and the records kept. Babcock v. Hahn, 175 Mo. 139. (7) Section 10,365, as amended by laws of 1909, which undertakes to vest the county court with power to locate the recorder’s office at some place other than the county seat, is unconstitutional and void. Constitution, art. 4, sec. 53: Constitution, art. 9, sec. 2; Babcock v. Hahn, 175 Mo. 136.

      Harry C. Black for respondents; W. M. Williams •of counsel.
    (1) Relators are not entitled to maintain this proceeding. The only interest possessed by them is that which they have in common with every other citizen and taxpayer of the county. They do not come-within the rule authorizing a taxpayer to intervene where proceedings are about to be taken which will increase or affect his property rights. It does not appear that they reside at Danville or will be inconvenienced or affected injuriously in any manner by the removal of the records and county officers from that place. 4 Ency. PL and Pr. 162; State ex rel. v. Wilson, 129' Mo. App. 247; 4 Ency. Law 162; State ex rel. v. Ayers, 116 Mo. App. 90. (2) The county court, in providing a building or house for the safe-keeping of the county records and offices for the transaction of the county business, acts simply as the agent or representative of the county, and its- proceedings are administrative and ministerial, and not.judicial. Certiorari will not lie to review ministerial acts of the ■county court. State ex rel. v. Clark County, 41 Mo. 44; In the Matter of Saline County Subscription, 45 Mo. 52; Phelps County v. Bishop, 46 Mo. 68; Hockaday v. Newsom, 48 Mo. 196; State ex rel. v. Harrison, 141 Mo. 12; State ex rel. v. White, 162 Mo. 533; State ex xel. v. Elkins, 130 Mo. 90'; State ex rel. v. Reynolds, 190 Mo. 588. (3) The order of the county court directing "the transfer, temporarily, of the recorder’s office and the deed records therein, for safe-keeping, to the courthouse in Montgomery City, is expressly authorized by the statute, under the conditions existing at Danville. R. S. 1909, sec. 10365. This statute is not in conflict with section 2, article 9, of the Constitution, concerning the removal of a county seat. It simply provides for the temporary safe-keeping of valuable county records, in which every property-owner is interested, in an emergency, until suitable buildings can be provided at the permanent seat of justice. This is not prohibited by the Constitution, which must receive a construction that will not lead to unreasonable consequences or results that will deprive the counties of the rig’ht to temporarily safeguard and protect their records when the necessity for such action arises. State v. Bixman, 162 Mo. 34; Cooley’s Constitutional Limitations (7 Ed.), 108; Lewis’s Sutherland on Statutory Construction (2 Ed.), 488. (4) The county court did not undertake to remove the county seat. An emergency arose in consequence of the burning of the courthouse that required the county court to provide tern-; porary offices for the transaction of the public business, and for the safe-keeping of its valuable records, and a room for the holding of the courts for the time being. There was no suitable building — in fact, no sufficient building at all — at the county seat that could be obtained for that purpose. It was the duty of the county court, representing the people of the county, in this emergency, to select a building as near the county seat as practicable, so that the records might not be destroyed and the business of the county might be carried on. A county court is not required to accomplish impossibilities, nor is it to permit the county to become disorganized and a cessation of the public, business, and its records be subjected to destruction because of the inability to secure a suitable building at the county seat. Herndon v. Hawkins, 65' Mo. 265; Boldin v. Ewart, 63, Mo. 332; Broom’s Legal Maxims, 184; Sevier v. Teel, 16 Tex. 372. (5) Certiorari only brings np for review the record of the lower court or tribunal, and the inquiries raised are jurisdictional in their nature. If, in an emergency, the county court has power to select buildings for temporary use outside of the county seat, then, if it be suggested that the discretion may be abused, the answer is that other remedies than certiorari must be resorted to to prevent such abuse. The record only can be looked to in determining whether the court exceeding its powers. State ex rel. v. St. Louis, 207 Mo. 1. c. 366.
   KENNISH, J.

This is an original proceeding in this court by certiorari. The relators are assessed taxpaying citizens of Montgomery county and respondents are the judges of the county court of that county. The object and purpose of the proceeding is to have brought before this court and quashed the record of the county court of Montgomery county, made and entered at a regular term thereof on the 8th day of February, 1911, in the matter of the removal of certain records and offices from the town of Danville, the county seat of said county, to the city of Montgomery in said county. The writ of certiorari was granted as prayed and the respondents in due time made return thereto. The relators filed a motion for judgment on the pleadings and the cause is thus at issue.

It appears from the record, as certified and filed in this court, that the proceedings sought to be quashed contained two separate orders of the county court and deal with two distinct subjects. In the first it is recited that it appeared to the court that the courthouse at Danville, the county seat, was twice burned and that there was then no suitable building at said county seat in which to keep the office of recorder of deeds. The order then refers to section 10,365, Revised Statutes 1909, which is as follows:

“The recorder shall keep his office at the seat of justice, and the county court shall provide the same with suitable books, in which the recorder shall record all instruments of writing authorized and required -to be recorded. If there is no courthouse or other suitable county building at the seat of justice, the county court shall provide an office for the recorder at any other place in the county where there is a courthouse and courts of record are held.”

The court makes a finding of facts which on its face brings the case within the provisions of said statute authorizing the removal of the recorder’s office, and upon such facts orders and directs the recorder of the county to remove his office and the records thereof to the courthouse at Montgomery City. It further appears from the return of the respondents that the office of recorder was removed, in accordance with the order of the county court.

The second order, made on the same day, also recites that the courthouse was twice burned and that there was then no courthouse or other suitable building in which to house and keep the various county offices and the records of the same, or in which to hold the courts or to transact the business of the county, at the town of Danville, the county seat of said county; that the frame store building in which the records were then kept was insufficient, unsafe and dangerous to keep the records in, and afforded no room for holding the various courts of the county; that the court was without funds at its disposal to build a courthouse or other building in which to transact the business of the county, etc. By reason of the foregoing facts the court found that an emergency had arisen, and the sheriff of the county was ordered and directed to select and secure a suitable building for the purposes aforesaid, at a place as near the county seat as was practicable.

On the same day the sheriff filed his report showing that he had complied with the order of the court and had found a suitable building at the city of Montgomery City. On the same day the county court considered the report of the sheriff, approved it and made an order directing the sheriff to remove the records and offices of the county to Montgomery City and that the same be located in the building selected by the sheriff for that purpose, and that thereafter the county offices should be kept there and the business of the county transacted and the courts of the county held at said temporary seat of justice until a courthouse or other suitable building should be provided at Dan-ville, the county seat. The return contains another report of the sheriff showing that he had moved ,the offices and records of the county to Montgomery City as ordered.

Relators moved for judgment on the pleadings that the proceedings of the county court be quashed, for the following reasons:

“1. Because the return of respondents herein shows no cause why said proceedings should not be quashed.’
“2. Because the return of respondents shows that said proceedings are and were null and void and contrary to and without warrant of law.
“3. Because said county court had no authority to move said county seat from Danville to Montgomery City.
“4. Because said return shows that Danville is the county seat, and that said county court has ordered all records to be moved to Montgomery City and all courts to sit there.”

I. Respondents have not challenged the regularity of the issuance of the writ, by motion to supersede or quash, but they make the point in their brief that, as relators have no interest in the proceedings sought to be quashed, except such as is common to every other citizen and taxpayer of the county, they are not entitled to maintain this action. Relators reply that as respondents have not filed a motion to supersede or quash the writ, the question of proper parties is waived and that only the merits of the case can now be considered. In the case of State ex rel. v. Guinotte, 156 Mo. 513, it is stated as the law that after the writ is issued and the record of the inferior court has been certified in response thereto, the discretionary stage as to the issuance of the writ has passed and it is then the duty of the court to hear and determine the cause on its merits, but as we understand that case the part of the opinion announcing that doctrine was not concurred in by a majority of the members of the court and therefore the case need not be regarded as a precedent upon that point. (The opinion on file in that case discloses that the word “now” instead of the word “not” is used in the sentence, “In this case the record being properly certified, the time for judicial discretion which we might have exercised in refusing the writ has not passed . . .” as that sentence appears in 156 Mo. l. c. 528.) As the application for a writ of certiorari is made ex parte and may be granted by one member of the court, no good reason is perceived why the question as to whether the writ was improvidently granted may not be inquired into when the respondents are brought into court and for the first time have an opportunity to raise that issue, as is the recognized practice in the case of other original proceedings. The weight of authority favors the right of respondents to attack, by proper motion, the regularity of the issuance of the writ. [State ex rel. v. Fraker, 168 Mo. 445; 6 Cyc. 813; 4 Ency. Pleading and Practice 234.] But the respondents in this case filed no motion to supersede or quash the writ, and assailed it at the hearing only on the ground of the want of sufficient interest of the .relators to maintain the suit. It is a general rule of law that by going to trial on the merits the question of a defect of parties is waived. And in this case, treating the motion for judgment as a general demurrer and giving the respondents the benefit of the principle that a demurrer searches the whole record and is taken as a demurrer to the pleading that contains the first fatal defect, we are of opinion that the question of proper parties is not presented and that respondents have waived their right to raise such question when the case is heard on the merits. [Sec. 1804, R. S. 1909; 6 Ency. Pleading and Practice 375; 6 Cyc. 815.]

II. It is contended by respondents that the rec-' ord sought to be quashed disclosed proceedings by the' county court which were administrative and ministerial in character and not judicial, and therefore that such proceedings cannot be reviewed by certiorari.

It is the settled law that certiorari, like a writ of error, will lie- only when the action sought to be reviewed is judicial in character. It will not lie if such ;action is the exercise of a ministerial or legislative function of government. [State ex rel. v. Reynolds, 190 Mo. l. c. 588; In the Matter of the Saline County Subscription, 45 Mo. 52; 4 Ency. Pleading and Practice 11; 6 Cyc. 750.]

Section 10,365, supra, expressly authorizes the county court to provide, at a place other than the county seat, an office for the recorder of deeds, under the conditions as found and set forth in the order sought to be quashed. And in providing a suitable place, pursuant to the statute, the court was acting in a purely administrative or ministerial capacity. Its action was not judicial in any sense. Whether the law under which the court was acting was valid or not is immaterial; for, if invalid, the action taken by the court would be none the less administrative or ministerial, and neither would it be judicial by reason of that fact.

The statute requires the recorder to keep his office at the county seat and the removal contemplated under the conditions stated is clearly of a temporary character. "While the law makes it the duty of the county court to provide a suitable building at the county seat in which the recorder may keep his office, and as soon as that is done it would be the plain, duty of the recorder to remove and keep his office there (State ex rel. v. Smith, 46 Mo. 60), yet we think the court was acting in an administrative capacity in making' the order for the removal of the office of the recorder and that its action to that extent cannot be reviewed by this writ.

III. The order of the county court under which the other offices and records were removed to Montgomery City was without any semblance of statutory authority. The law empowers the county court to establish a temporary county seat only in a case where the site of a former county seat has. been washed away by a river. [Sec. 3674, R. S. 1909.] The fact that, express legislative authority was essential to authorize a county court to provide a temporary county seat, even under such calamitous conditions, excludes the theory of the existence of power to establish a temporary county seat under the facts of this case.

But the question immediately confronting us now is not whether the court was without authority in the action taken, but rather, Was the court engaged in the exercise of judicial power in making ,the. order sought to be quashed? It is of no avail to relators to show that the order was not within the jurisdiction of the court and for that reason void, unless they can further show that such action was judicial in its carácter. What the respondents were attempting to do was in effect to remove the county seat, and relators complain in their petition that “the county court has' no jurisdiction to enter an order effecting the removal of the county seat, nor has it any power or authority to remove the records from the county seat to Montgomery City or any other place.” And in their brief relators make the point that “the order made by the county court of Montgomery county operates to remove the county seat, and the county court has no jurisdiction to make such an order.”

The question is thus presented whether the county court, in taking the action shown in the record before' us, was engaged in a judicial proceeding and exercising judicial functions.

Discussing the question as to what is judicial action of a county court, subject to review by certiorari, this court, in the case of In the Matter of Saline County Subscription, 45 Mo. l. c. 53, said: “Judicial action is an adjudication upon the rights of parties who in general appear or are brought before the tribunal by notice or process, and upon whose claim some decision or judgment is rendered. It implies impartiality, disinterestedness, a weighing of adverse claims, and is inconsistent with discretion on the one hand — for the tribunal must decide according to law and the rights of the parties — or with dictation on the other, for in the first instance it must exercise its own judgment under the law, and not act under a mandate from another power. The tribunal is not always surrounded with the machinery of a court, nor will such machinery necessarily make its action judicial. A county court is certainly a judicial, body for some purposes, but no more so for thé name, nor for the fact that it has a seal and a clerk and keeps a record. The character of its action in a given case must decide whether that action is judicial, ministerial or legislative, or whether it be simply that of a public agent of the county or state, as in its varied jurisdiction it may by turns be each. ’ ’ And in the case of State ex rel. v. Elkins, 130 Mo. l. c. 104-105, speaking through Barclay, J., the court said-: “It is very true that the subject-matter of changing the location of a county seat belongs to the administrative department of the county court. That has been often asserted in decisions of the Supreme Court, the latest of -which is St. Louis, etc., Co. v. City, 92 Mo. 165. . . Indeed, the whole proceedings for the change of a county seat belong to the same general department of governmental activity which that court exercises in the control of the county property and the county finances.” See also State ex rel. v. Clark County, 41 Mo. 44; Railway Co. v. City of St. Louis, 92 Mo. 160; St. Louis v. Sparks, 11 Mo. 201; Tethrow v. Grundy County Court, 9 Mo. 118.

The fact that orders assuming the form of adjudications were made by the county court cannot affect the character of the function of government exercised, for, as said in the Elkins case, supra, “it-is the nature of the act which determines the propriety of the writ. ’ ’

The action of the county court sought to be quashed in this proceeding is not attended by the incidents of a judicial proceeding. No notice was given, no parties were before the court, and the court did not attempt to pass upon or determine personal or property rights, as they existed at the time the action was taken. On the other hand, such action was clearly administrative and ministerial in character, in that it had to do with the public affairs of the county, looking solely to its future welfare.

Although an inspection of this record makes it apparent that the action of respondents, in so far as it was attempted to remove the county seat from the place where it had been established by law, and from which, as admitted in the pleadings, the qualified voters had repeatedly refused to remove it, was without legal authority, yet such action was not judicial in character and therefore not subject- to review by the writ of certiorari.

For the foregoing reasons we hold that the writ should be quashed and it is so ordered.

All concur— Lamm, J., in separate opinion.

SEPAEATE CONCUEEING OPINION.

LAMM, J.

The complained of acts of the county court which, in a round-about way, temporarily removed the county seat of Montgomery county from Danville to Montgomery City, were not judicial. That, under such circumstances, certiorari is not the appropriate remedy seems quite clear.

To justify the county court, it was argued with graphic animation at our bar that Danville (in the flux of time and run of events) had become, to use counsel’s own words, “only a wide place in the highway,” — this, because of natural decay, but mostly because of a fire. Whereby would not respondents have us believe that peradventure Danville had been abnormally elongated and, by the self-same stroke, its width had been abnormally cut down? In relators’ brief in reply, we are told that the aforesaid fire happened ten years gone. It may be that the prick and smart of the suggestion that such ten-year-old fire left Danville “only a wide place in the highway,” constrained learned counsel in his reply to indulge in an hypothesis running somewhat contra, thus (quoting):

“If this ancient and historic seat of justice is to be likened to the Niobe of Nations standing in voiceless woe, holding ‘an empty urn within her withered hand,’ we must not forget that such has been her plight for more than ten long years, and that the emergency-producing fire is one, ‘whose holy dust was scattered long ago.’ ”

At first blush, it might seem there was something of substance in those suggestions pro and con, having to do with the legal rights of the parties. It might seem we had call to determine the issue thus raised, viz., whether Danville was really and truly a wide place in a road (on one hand), as pnt by respondents’ •counsel, or a Niobe of Nations holding an empty urn within her withered hand (on the other), as put by relators. But, however inviting that field of exploration, contemplation and wisdom are bound to say to this court: Hands off! Meddle not therewith. Where-from it results that our brother ICennish was justified in making no comment at all on such novel and extraneous issue. Is the calm and delicate equipoise of an appellate court to be disturbed by mere color of feeling or the charm of rhetorical flourish in briefs or ore tenusf Judicial commentary should be confined to those pertinent issues susceptible of being judicially determined. Mere comment, without determining anything, spells danger. Thereto seemingly agrees Lord Coke, viz.: “A commentary should not be like unto the winterly sun, that raiseth up greater and thicker mists and fogs than it is able to disperse.” (Vide, Preface to Calvin’s Case, 7 Rep.) I give my vote to agree.