author: WALKER, J. GRAVES, J.

text:
    THE STATE ex rel. JOHN T. BARKER, Attorney-General, v. GUSTAVUS A. WURDEMAN, Judge.
    In Banc,
    February 10, 1914.
    1. CERTIORARI: To Review Habeas Corpus Proceeding. Under the general superintending control over all inferior courts conferred by the Constitution upon the Supreme Court the writ of certiorari will issue from said court to review the proceedings in a habeas corpus case pending in the circuit court. At common law the issuance of the writ of certiorari was authorized before the proceedings instituted had culminated in a trial, order or judgment, and was based on the absence or an excess or a usurpation of jurisdiction on the part of the court from which the proceedings were removed; and under Missouri procedure the office of the writ is the same as at common law, and courts are authorized to adopt the principles and usages pertaining to it developed under the common law system, if in other respects consistent with existing statutes.
    2. —------: When Applied for by Attorney-General. When the writ of certiorm-i is applied for by the Attorney-General it goes as a matter of course where there is apparent on the face of the application absence, excess or abuse of jurisdiction, or absence of the right of appeal, or lack of any other adequate remedy.
    3. HABEAS CORPUS: When Should Issue. The writ of habeas corpus should never be suspended; but at the same time its issuance, in view of the liberal system of procedure against those accused of crime, should always be guided by a wise and wholesome discretion. A refusal of the writ under a proper state of facts is not a suspension of it, but the exercise of a judicial power with which the judiciary is clothed as a part of its inherent existence. Upon an allegation that the petitioner is being illegally restrained, the court or judge, in the exercise of a judicial function, will determine whether his individual liberty and the demands of justice, if he is being held under the warrant or process of a court, authorize the issuance of the writ.

      i. -: -: Invalid Statute. Where the right to a writ of habeas corpus depends upon a statute collaterally involved, and the holding of'the statute to be invalid will foreclose the right of petitioner to an appeal or writ of error, and constitute a final determination of the case, the writ should not be granted.

      5. -: -: Grade of Offense: Constructive Detention. In exercising the judicial function to.issue a writ of habeas corpus the grade of the offense and the fact that petitioner is only constructively restrained, should be considered. In this case the record shows that the petitioner, after being arrested by the sheriff for selling liquor without a license in view of the officer, was, pending the habeas corpus proceeding, released on a nominal bond approved by the circuit judge, and on the same day he was arrested upon the filing of an information by the prosecuting attorney in the circuit court, charging him with selling liquor without a license, and upon the approval of a like bond to appear at the next term he was again released.
    6. -: -: Remedy at Trial. If the invalidity of the statute collaterally involved and upon whose invalidity petitioner bases his right to be discharged may be raised by him in the trial of the case upon its merits, and no substantial right he possesses would be lost or lessened by a refusal of the writ of habeas corpus, it should be denied.
    7. SPECIAL STATUTE: St. Louis County Excise Commission. Held by WALKER, X, with whom WOODSON, X, concurs, that the Act of March 25, 1913, Laws 1913, p. 199, creating an excise commission in counties of 75,000 inhabitants or more, adjoining a city of 500,000 inhabitants or more, is not a special or local law denounced by any section of the Constitution; but GRAVES and FARIS, JX, are of the opinion that any ruling on' the point would be obiter,' since the validity of the statute could be determined on appeal if petitioner were convicted of violating it, and therefore is not involved in a habeas corpus proceeding; and LAMM, C. J., and BROWN and BOND, JJ., dissent. There is, therefore, no adjudication of the validity of the statute by a majority of the judges.
    8. HABEAS CORPUS: Criminal Case: Notice to Prosecutor. The statute requiring a notice to the prosecuting attorney where the petitioner for a discharge by the writ of habeas corpus is held under criminal process should be complied with as a condition precedent to the legality of a hearing of the petition. But the proceeding will not be quashed for lack of formal notice where the prosecuting attorney had actual knowledge of the proceeding, and formal notice would have served no useful purpose.

      Certiorari.

    Record quashed.

      John T. Barker, Attorney-General, Ernest A. Green, Assistant Attorney-General, Arthur V. Lashly and George Barnett for relator.
    (1) Certiorari will issue by the Supreme Court to an inferior court in order to prevent an unregulated or unauthorized exercise of powers by such inferior court in a habeas corpus case. State ex rel. v. Dobson, 135 Mo. 1; State -ex rel. v. Broaddus, 245 Mo. 123; State ex rel. v. Smith, 176 Mo. 99; State ex rel. v. Shelton, 154 Mo. 670; State ex rel. v. Lichta, 130 Mo. App. 284; State ex rel. v. Broaddus, 238 Mo. 189; State ex rel. v. Knutt, 207 Mo. 167. (2) Under the allegations of the petition for habeas corpus, the circuit court exceeded its jurisdiction and exercised unauthorized powers in issuing the writ of habeas corpus. State ex rel. v. Dobson, 135 Mo. 1; R. S. 1909, secs. 2441, 2444; Ex parte Smotherman, 140 Ala. 168; Ex' parte Roberts, 166 Mo. 207. (3) The court acted without authority and in excess of its jurisdiction when it issued the writ of habeas corpus without notice of the application for the writ being given to the prosecuting attorney. R. S. 1909, sec. 2509; Lowe v. Summers, 69 Mo. App. 637; Hurd on Habeas Corpus (2 Ed.), p. 227; People v. Carter, 48 Hun, 165; People v. Navagh, 41 Hun, 188; People v. Pelham, 14 Wend. 48; People v. Carsels, 5 Hill, 164; People v. Brennan, 61 Barb. 540; People v. Kehl, 15 Mich. 330; People v. Melody, 91 N. Y. App. 569. (4) The petition for habeas corpus shows on its face that petitioner was arrested for the commission of a crime defined and created by law. R. S. 1909, secs. 7188, 7208. (5) The constitutionality of the law with which petitioner was charged with violating is not assailed in this case, and, therefore, habeas corpus will not lie. Ex parte Lucas, 160 Mo. 218; Ex parte Neet, 157 Mo. 527. (6) On habeas corpus, courts cannot examine into matters of defense. Ex parte Ruthven, 17 Mo. 541; Ex parte Bird, 19 Cal. 130. (7) The writ of habeas corpus was improvidently issued in this case because the time for which petitioner might be legally detained had not expired. R. S. 1909, secs. 2472, 4418. (8) The court exceeded its powers when it proceeded with the hearing of the habeas corpus case on its merits instead of quashing the writ when the return showed that the prisoner had been discharged by the sheriff on bail, and that he was no longer under restraint. Ex parte Capíes, 58 Miss. 358; Ex parte Walker, 53 Miss. 366; Spiney v. Dahlman, 34 Neb. 692; Ex parte Whitney, 114 U. S. 564; Whitman v. Burgan, 70 Iowa, 161; In re Cole, 14 Tex. App. 579; Ex parte Lampert, 21 Hun, 154; 15 Am. & Eng. Ency. Law, 159; 2 Spelling on Extraordinary Remedies (2 Ed.), sec. 1192. (9) Right of prisoner to discharge on habeas corpus does not depend upon the legality or illegality of his original caption, but upon the legality or illegality of his detention at the time of the return. Ex parte Dye, 32 Mont. 132; Ekin v. United States, 142 U. S. 651; lasege v. Van de Carr, 166 U. S. 391; Hurd on Habeas Corpus (2 Ed.), pp. 251, 252. (10) When the return of the officer, undenied, shows that he is holding the petitioner under a valid warrant issued by a court of competent jurisdiction, the court must remand the petitioner. Any other action would be in excess of its powers. • R. S. 1909, sec. 2474. (11) The sheriff had the authority without a warrant to arrest the petitioner for the offense of selling liquor without a license committed in his presence. Bishop on Criminal Procedure (2 Ed.), 183; R. S. 1909, sec. 7210. (12) The sheriff had the right to detain the petitioner for a reasonable length of time for the purpose of obtaining process. 3 Cyc. 895; R. S. 1909, secs. 4418, 7210; Ex,parte Smotherman, 140 Ala. 168. (13) The habeas corpus is an attempt to collaterally attack the right of the Excise Commissioners to hold office.

      A. E. L. Gardner for respondent.
    (1) The function, or office, of the writ of certiorari, when invoked to supervise proceedings by habeas corpus, is to prevent an unregulated and possibly scandalous exercise of jurisdiction by the subordinate court or officer authorized to grant the writ of habeas corpus. State ex rel. v. Broaddus, 245 Mo. 141; State ex rel. v. Dobson, 135 Mo. 1. (2)-Under the Constitution and statutes in proceedings by habeas corpus, in issuing the writ and determining the questions arising under it, the circuit court has the same power, authority and jurisdiction as the Supreme Court, and has the same duties to perform. Ex parte Jilz, 64 Mo. 211; In re McDonald, 19 Mo. App. 373; Ex parte Creasy, 243 Mo. 698; R. S. 1909, secs. 2442, 2509. (3) The writ of habeas corpus is an immediate remedy for every illegal imprisonment. Commonwealth ex rel. v. Brower, 9 Kúlp (Pa.), 318; People ex rel. v. Wells, 68 N. Y. Supp. 59; People ex rel. v. Duryee, 188 N. Y. 445; People ex reí. v. Liscomb, 60 N. Y. 559, 18 Am. Rep. 211; Attorney-General v. Daboll, 90 Mich. 272; Ex parte Creasy, 243 Mo. 698; 2 Story on the Constitution (5 Ed.), sec. 1339; Cooley’s Principles of Const. Law (2 Ed.), pp. 7, 300; 1 Kent Comm. (11 Ed.), Lecture 24, *pp. 27, 32; 3 Cooley’s Bl. Comm. (3 Ed.), *pp. 129-138. (4) The writ of habeas corpus is a high prerogative writ given by the common law and of authority paramount to all other writs. By the production of the prisoner on a writ of habeas corpus the court acquires absolute jurisdiction of the person and the original cause of commitment is suspended until the cause is disposed of. The custody is not on the original warrant, but is under the authority of the writ of habeas corpus. State ex rel. v. Broaddus, 245 Mo. 140; Ex parte Creasy, 243 Mo. 679'; Matson v. Swanson, 131 111. 255; State v. Sparks, 2-7 Tex. 705; In .re Kaine, 55 U. S. 103; Barth v. Clise, 791 U. S. 401; Haley’s Case, 1 Mod. 195; Tazacharly v. Baldo, 1 Salk. 352; 2 Story’s Const. (5 Ed.), sec. 1339; Bacon’s .Abridgment, Habeas Corpus, B. 13. (5) (a) “In order to assert our rights, acknowledge our duties, and proclaim the principles on which our government is founded, we declare . . . that the privilege of the writ of habeas corpus shall never be suspended.” Const, of Missouri, Bill of Rights, art. 2, Preamble, and sec. 26; State ex rel. v. Broaddus, 245 Mo. 139 ; 2 Story on the Constitution ('5 Ed.), secs. 1338-1342. (b) What the Legislature may not do under the constitutional interdiction, no court should be bold enough to either dare to do or try to do. State ex rel. v. Broaddus, 245 Mo. 140; Ex parte Milligan, 71 U. S. 2; 1 Bailey on Habeas Corpus, sec. 3. (c) Suspension of the writ simply denies to the person arrested the privilege of its use to obtain his liberty. Anderson’s Law Dictionary, pp. 500-501, “Habeas Corpus;” Cooley’s Principles of Const. Law (2 Ed.), 300; 1 Cooley’s Bl. Comm. (3 Ed.), *p. 135, note 16. (d) The enforced delay of over three'months in the hearing and determination of the habeas corpus proceeding, coerced by the writ of certiorari issued herein, suspends the privilege of the writ of habeas corpus, impairs the substantial efficacy of that writ and curtails its efficiency. Constitution of Missouri, sec. 26, art. 2; State ex rel. v. Broaddus, 245 Mo. 139; Ex parte Gaume, 161 Mo. 390; Attorney-General v. Daboll, 90 Mich 272; 1 Bailey on Habeas Corpus, sec. 3; 1 Kent Comm. (11 Ed.), Lecture 24, *pp. 2:6-27, 32; 3 Cooley’s Bl. Comm. (3 Ed.), *pp. 129-138. (e) Petitioner thereby is denied his day in court by a side stroke or by indirection. State ex rel. v. Broaddus, 245 Mo. 141; State ex rel. v. McQuillin, 246 Mo. 5401.
   WALKER, J.

This is a proceeding by certiorari instituted by the State, at the relation of the Attorney-General. The writ directed Gustavus A. Wurdeman, Judge of Division. No. 2 of the Circuit Court of St. Louis County, respondent, to certify to this court a true copy of the record in a habeas corpus proceeding then pending before him, in which Henry L. Algermissen was petitioner and the sheriff of St. Louis county was defendant. In obedience thereto, the respondent filed in this court a complete copy of said record, and thereafter, on the 3rd day of October, 1913:, filed his motion to quash the writ of certiorari and to dismiss the cause.

The proceedings in the circuit court were as follows:

On July 18, 1913, the sheriff of St. Louis county arrested Henry L. Algermissen, charged with selling liquor without a license, the sale having been made in the view of the sheriff and another. Hpon the arrival of the sheriff at the courthouse in Clayton with Algermissen in custody, about two hours after his arrest and before any formal charge had been preferred against him, a writ of habeas corpus was served on the sheriff commanding him to forthwith produce the body of Algermissen before the respondent and show by what legal authority he was holding him. The prosecuting attorney was not formally notified of the proceeding as required by section 2509, Revised Statutes 1909, but had actual knowledge of same. In compliance with the court’s order the sheriff produced the body of Algermissen before the respondent, who at once admitted him to bail, conditioned upon his appearance before said circuit court in the habeas corpus proceedings on the 19th day of July, 1913, and ordered the sheriff on or before said day to make his return to the writ of habeas corpus. On July 18th, the prosecuting attorney filed an information in the office of the clerk of the circuit court, which was assigned to Division No. 1 of said court, charging said Algermissen with selling liquor without a license, and immediately thereafter, on the same day, a capias was issued by the clerk and placed in the hands of the sheriff, commanding him to take Algermissen into custody. The sheriff arrested Algermissen under said capias, and the latter gave bond for his appearance in said Division No. l of the circuit court at the next term, or upon the setting of the case, to answer the information so filed by the prosecuting attorney, and the sheriff again released him and he is now at liberty. On July 19th, the sheriff filed his return to the writ of habeas corpus, in which he set out the following facts:

That he had arrested Algermissen for a misdemeanor, viz., selling liquor without a license, committed in his view; that he had surrendered him to the custody of the court; that he had subsequently arrested him by virtue of a capias issued by the clerk of the circuit court for the same offense; and that thereafter Algermissen was admitted to bail, released, and was not then in his custody.

No answer was filed to this return, and no motion was made to discharge the prisoner. Immediately after the filing and reading of the return, in Division No. 2 of said circuit court, before respondent as judge thereof, the court heard arguments by counsel of the respective parties as to the return, and as to whether the validity of the law creating the Board of Excise Commissioners was in issue in the habeas corpus proceedings, and held that the validity of the law was in issue, and continued the further hearing until August 5, 1913. On July 29, 1913, the petition for a writ of certiorari was applied for and granted by this court.

I. Certiorari to Review Habeas Corpus. Under the Constitution of this State (Art. 6, sec. 3, and sec. 8, Amdt. 1884), this court .has a general superintending control over all inferior courts and as a means of maintaining same is clothed with power to issue writs of habeas corpus, quo warranto, certiorari and other original remedial writs and to hear and determine same. At the common law the issuance of the writ of certiorari was authorized before the proceedings instituted had culminated in a trial, order or judgment, and was based upon the absence or an excess or usurpation of jurisdiction on the part of the court from which the proceedings were removed. [1 Tidd Pr. (4 Am. Ed.) 398; 6 Cyc. 737, 750, 770:] Under our procedure the office of the writ is the same as at common law, and our courts are authorized to adopt the principles and usages in regard to the writ as developed under the common law system, if in other respects consistent with the letter and spirit of existing statutes. [State ex rel. Harrison County Bank v. Springer, 134 Mo. 212, 222; State ex rel. v. Walbridge, 69 Mo. App. 657, 666, and cases; State ex rel. v. Walbridge, 123 Mo. 525, 537; State ex rel. v. Smith, 101 Mo. 174.] Under this general superintending power conferred by the Constitution it has been held by this court that the writ will issue to review the proceedings in a habeas corpus case. [State ex rel. v. Broaddus, 245 Mo. 123, 135; State ex rel. v. Dobson, 135 Mo. 1, 19.] A like rule prevails elsewhere. [Ex parte Montgomery, In re Knox, 64 Ala. 463; McLaren v. Brown, 34 Ga. 583.]

Where the writ is applied for, as it is here, by the chief law officer of the State, the Attorney-General, it goes as a matter of course (State ex rel. v. Dobson, 135 Mo. 1, 19) in the first instance, provided there is apparent in the application any one of the following requisites: 1st, absence, excess or abuse of jurisdiction (State ex rel. v. Broaddus, 238 Mo. l. c. 204; State ex rel. v. Reynolds, 190 Mo. 578; State ex rel. Knox v. Selby, 133 Mo. App. 552); 2nd, absence of the right of appeal (State ex rel. v. Broaddus, 245 Mo. l. c. 135; Ferguson v. Ferguson, 36 Mo. 197; Ex parte Jilz, 64 Mo. 205; Weir v. Marley, 99 Mo. 484, 488); and, 3rd, lack of any other adequate remedy (State ex rel. Iba v. Mosman, 231 Mo. 474; State ex rel. v. Guinotte, 156 Mo. 513; State ex rel. Sanks v. Johnson, 138 Mo. App. 306).

The petition for certiorari being sufficient for the submission of the issues involved, its reproduction here is unnecessary, and the duty devolves on .us to examine the record to determine whether or not the habeas corpus proceeding was authorized. [State ex rel. v. Broaddus, 245 Mo. l. c. 140.] Petitioner’s discharge on bail might pertinently be considered as a reason why the writ should not issue (3 Yeates R. 263; 1 Serg. & R. 356; Hurd, Hab. Corp. (2 Ed.), p. 201); but we have, in the interest of the petitioner, ignored this record fact, and have reviewed the case as though formal complaint had been filed against him before the issuance of this writ and that he was being detained by reason of such complaint.

II. Habeas Corpus. It may profit nothing to recount in this connection, the origin and history of the Habeas Corpus Act, first enacted (31 Car. II, c. 2), strange as it may seem, in one of the most corrupt reigns recorded in English history, the infamies of which the facile and suppliant pen of Hume, the artful and unscrupulous partisan of the House of Stuart, has not been able to gloss over; nor is it necessary to descant upon the constitutional value of this act which rendered the remedy against arbitrary imprisonment certain, short and readily obtainable, but introduced no new principle into the system of English jurisprudence, nor did it form such an epoch in the acquisition of national liberties as many writers from Blackstone to Lamm, C. J., in State ex rel. v. Broaddus, 245 Mo. l. c. 139, have so eloquently represented. [2 Hallam, Con. Hist. 176; Creasy, Eng. Con., p. 269; Hurd, Hab. Corp. 83.]

Individual liberty has been of slow and perilous growth. The right of a freeman not to be detained in prison except upon a criminal charge or conviction or for civil debt, did-not have its origin in the Habeas Corpus Act adopted by Parliament in 1679, as popularly believed, but it had existed, although seemingly at times obliterated by tyranny, from the earliest records of the English law. The abuse and evasion of this right, more especially by the arbitrary proceedings of the Earl of Clarendon during the reign of Charles II., probably aroused the people, as oppression often does, to a livelier sense of the necessity of an express statute declaratory of the public will on the subject, than the imprisonment of the obscure individual Jenks, to which, as every student of English law knows, is oftentimes attributed the occasion of the enactment. The beneficial effect of this statutory-declaration as affording a ready remedy against arbitrary and continued imprisonment is evident, but it did not blossom forth in one enactment, nor is it a fetich upon- which adjectives should be exhausted or that veneration paid it which the wandering Israelites bestowed upon the cedar chest called the Ark of the Covenant. Recognizing, therefore, the remedial effect of the act, which has been adopted wherever the common law prevails, it should never be suspended, but at the same time its issuance, in view of our liberal system of procedure against those accused of crime, should always be guided by a wise and wholesome discretion.

While we agree with the learned Chief Justice, as stated in the Broaddus case, supra, that it is the duty of those “who attend as priests at the altar of justice to well see to it that the flame of the lamp- of personal liberty is kept alive,- well trimmed and brightly burning” (if the sacerdotal function, which we question, has any relation to that of the judiciary), we should also, in the exercise of a wise discretion, see to it that the light of this flame does not so blind the eyes of the judge issuing the writ, as to improperly influence his judgment.

We fully recognize the force of the constitutional provision (Sec. 26, art. 2, Constitution of Missouri) that “the privilege of the writ of habeas corpus shall never he suspended;” the refusal of the writ, however, under a proper state of facts, is not a suspension of same, hut is the exercise of a power with which the judiciary is clothed as a part of its inherent existence. It must he remembered as was cogently said by Sherwood, J., in State ex rel. v. Dobson, 135 Mo. l. c. 10, that “the writ of habeas corpus is a writ of right, hut not a writ of course” . . . That “the issuance of the writ is not a mere perfunctory operation, . . . to he ‘had for the asking,’ ” hut that “it is intended as a relief alone against unlawful imprisonment; and no imprisonment is. unlawful when the process is a justification of the officer” — citing Com. ex rel. v. Lecky, 1 Watts, 67. Further, that “judicial discretion is as necessary to the issuance of the writ as in the issuance of any other writ whatsoever. It can only properly issue to.one entitled to it, either under the common law or under the statute. Were it otherwise, the writ would descend from its high plane, and its issuance become a mere ministerial act which could he performed by the clerk of a court as well as by the judge.” In harmony with this reasoning it was held in the same case (p: 18) that the statute (now Sec. 2497, R. S. 1900) was invalid which subjected a court or magistrate to a penalty for refusing to issue the writ; the court holding that the invalidity consisted in an interference by the Legislature with a judicial function which required the exercise of discretion in its performance and hence could not he abrogated by a statute.

The test, therefore, as to the right to this writ is the existence of such an imprisonment or detention, actual though it may not he, as deprives one of the privilege of going when and where he pleases (Hurd on Hab. Corp., pp. 200 et seq.); and upon such restraint being alleged, the court or judge will, in the exercise of discretion, determine whether the individual liberty of the petitioner and the demands of justice, if the petitioner is being held under the warrant or process of a court, authorize the issuance of the writ.

Conceding the sufficiency of the petition for habeas corpus, was the respondent, under the facts disclosed, by the record, authorized to issue the writ? The petitioner was charged with the commission of a misdemeanor, and the complaint was filed, charging him with this offense in the court of which the respondent was one of the judges. In addition, therefore, to the knowledge he obtained from the petition, as to the locus of the proceeding, he had actual knowledge not only of the filing of the complaint in his own court, as the same was then in session, but as to the actual character of the offense and nature of the detention..

The material allegation of the petition is that the petitioner is being held under an invalid statute — not the one it was alleged he had violated, but a statute creating an excise commission to regulate the granting of dramshop licenses in counties of the class to which St. Louis county belongs. The facts attending the application for the writ give color to the conclusion that the purpose of this proceeding, in form to secure the release of the petitioner, was in fact to test the validity of this statute. This aside, however, for we concern ourselves only with what is shown by the record.

We do not question the right of a petitioner to the writ if the statute under which he is held is unconstitutional (Ex parte Harrison, 212 Mo. 88, 16 L. R. A. [N. S.] 950); but where, as in this case, the right depends upon a statute collaterally involved, and the holding of same to be invalid will foreclose the right to an appeal or writ of error, and constitute a final determination of the case, the writ should not be granted; the grade of the offense and the constructive detention of the petitioner should also be taken into consideration — the record showing petitioner’s release on a nominal bond approved by the respondent, pending the habeas corpus proceeding, and the approval of a like bond upon his being charged in a formal complaint with the same offense. That the invalidity of the statute in question may be raised by the petitioner in a trial of the case upon its merits, and that no right he possesses under the law is lost or would have been lessened by the refusal of the writ, are also factors which the respondent should have weighed in determining whether' the issuance of the writ was the exercise of a wise discretion; in view, therefore, of the fact that no substantial right of the petitioner would have been jeopardized by the refusal of the writ, we are of the opinion it was improvidently issued.

III. The Statute. Despite the fact that we hold the writ of habeas corpus to have been improperly issued, the record sufficiently presents petitioner’s grounds as to the invalidity of the statute (Laws 1913, pp. 199-202, approved March 25, 1913), creating the excise commission in St. Louis county and other counties of like class, to entitle .same to our consideration and thus finally determine the validity of this statute. It is challenged in the copy of the' petition for habeas corpus set forth in respondent’s return- for the following reasons:

“ (1) Because said act is in violation of that portion of article 4, section 53-, of the Constitution of Missouri, which provides that the G-eneral Assembly shall not pass any local or special law ‘regulating the affairs of counties, cities, townships, wards or school districts. ’
“ (2) Because said act violates that portion of article 4, section 53, of the Constitution of Missouri, which provides that the General Assembly shall not pass any local or special law ‘creating offices, or prescribing the powers and duties of officers in counties, cities, townships, election or school districts.’
“ (3:) Because said act violates the provisions of article 4, section 53, of the Constitution of Missouri, which prohibits the Legislature from passing any special law granting to any corporation, association or individual any special or exclusive right, privilege or immunity. .
“(4) Because said act violates section 53 of article 4 of the Constitution of Missouri, which prohibits the General Assembly from passing any local or special law where a general law can be made applicable.
“(5) Because said act violates section 30' of article 2 of the Constitution of Missouri, which provides that no person shall be deprived of life, liberty or property without due process of law.’ ”

IY. Title. The title of the act is sufficiently clear and comprehensive to define its purpose and prescribe the manner in which it shall be enforced. [State ex rel. Bixby v. St. Louis, 241 Mo. 231; State ex rel. v. Gordon, 223 Mo. 1.] No valid objection can, therefore, be urged against the act in this respect.

Y. Validity of Statute. The classification made by the act is as to counties of 75,000 inhabitants or more, adjoining a city of 500',000 inhabitants or more. The fact that St. Louis county was at the time of said enactment the only county having a population of 75,000 or more, adjacent to a city (St. Louis) of 500,000 inhabitants or more, and that said city was the only one in the State then having the designated population, does not render the act obnoxious to the State Constitution in regard to special legislation. The act under its terms will apply with equal force in the future to other counties or cities which by increase in their populations may come within the purview of the statute. [State ex rel. v. Clayton, 226 Mo. 292, 307.] In other respects the classification is not unreasonable as to the subjects to which it applies and its application is uniform as to the classes embraced within its provisions. [State v. Parker Dist. Co., 236 Mo. 219, 281; State v. Brodnax, 228 Mo. 25, 45, 137 Am. St. 613, affirmed Brodnax v. State, 219 U. S. 285, 55 Law Ed. 219.] Thus much in regard to the validity of the statute considered generally without reference to the subject legislated upon.

In its general.features and with reference to the subject of legislation the statute is similar to that providing for an excise commissioner to regulate the issuance of dramshop licenses in cities having- a population of 300,000- or more (Art. 2, chap. 63, R. S. 1909). This statute after a careful review by this court in State ex rel. v. Bell, 119 Mo. 70, 76, was declared not to be a local or special law, and hence not violative of section 53 of article 4 of the Constitution of Missouri, on the authority of State ex rel. v. Miller, 100 Mo. 439, 447, in which the cases bearing on this subject are ■elaborately discussed. [See also State ex rel. v. County Court, 128 Mo. 427, 443.] By parity of reasoning, therefore, the act under review in the instant case may be held to. violate no provision of the organic law.

The record shows that the Board of Excise Commissioners, under the authority of section 4 of the act (Laws 1913, p. 200), revoked the petitioner’s license to sell liquor. If the statute is valid, and this is the only question under consideration, ample power was lodged in the board to revoke the license, which was in no sense property, but a mere permit issued in the exercise of the police power, to do what, in the absence of the permit, would have been illegal.' No property rights being involved calling for the exercise of a judicial function in the revocation of the license, the excise board acted in a ministerial capacity in revoking the permit which the licensee had violated. The right of revocation, therefore, is as much a part of the license as though, it had been written into it, and the licensee must be held to have accepted it upon these terms and conditions. [State v. Seebold, 192 Mo. 720, 726; Higgins v. Talty, 157 Mo. 280, 287.] The license not being property, but a mere privilege, it was subject to revocation on such conditions as the State, through its law-making power, saw fit to impose, and objections will not be heard questioning the constitutionality of the law for the reasons urged in the Seebold case, supra, first, because such revocation is not a punishment, and, second, because no property right is thereby affected, and the licensee has no such interest in defeating the law as will be considered by this court. This disposes of the objection to the validity of the statute based on section 30, of article 2 of the Constitution of Missouri, in regard to due process.

State ex rel. v. Turner, 210 Mo. 77, in which the Seebold case, supra, was, in an exhaustive opinion by Woodson, J., reviewed and distinguished, is not an authority against the conclusion here reached. In the Turner case, mandamus was sought to compel the granting of a license to sell liquors in the city of Columbia. The provisions of the general law had been complied with by the applicant, and in addition he had procured the required two-thirds majority of the qualified taxpayers to his petition, which rendered the granting of the license mandatory by the county court, in the absence of other legal objection. The court refused the license on the ground that a statute called the “Five-Mile Law” prohibited the granting of dram-shop license within that distance of an educational institution having enrolled therein 1500' or more students —the State University then having that enrollment and being located in Columbia. This court held the distance statute invalid as special legislation, and ordered the issuance of the writ; the basis of the court’s conclusion, the soundness of which we do not question, being that the general law having been fully complied with, even as to its mandatory requirement, and the distance law being invalid, there was no alternative left the county court but to grant the license. The Turner case, therefore, is not parallel in its facts with the Seebold and Talty cases, supra, and hence not in conflict with the conclusions reached in the case at bar.

VI. Notice of Writ. Relator contends that the habeas corpus proceeding was void for want of notice, section 2509, Revised Statutes 1909, requiring notice to the prosecuting attorney where the petitioner is held under criminal process.

Important as is the matter to a petitioner that he should be speedily released if illegally imprisoned, it is also of much concern to the public, where one is held on a charge of crime or misdemeanor, that the prosecuting attorney should have notice of the application for or the pendency of the writ in order that the possibilities of an escape from merited punishment may not result from an ex parte hearing. The necessity of notice in habeas corpus proceedings is emphasized by Tilghman, C. J., in an early Pennsylvania case, Hecker v. Jarret, 3 Binn. (Pa.) 404, in which the writ was sought in a civil proceeding,- the language of the court being as follows: “The power of discharging from an execution is a very important one, and should be exercised with great discretion. . . . I will not say that the judge had no right to discharge from imprisonment in a case of this nature. I am of opinion, however, that granting his right to discharge, his proceedings were void for want of notice to the plaintiff in the execution.”

In New York, as here, notice of proceedings is required to be given the public prosecutor. It is held there, in the absence of such notice, that a judge has no right, where the detention is under criminal process, to discharge the prisoner. [People v. Carter, 48 Hun, 165, 167; People v. Cassels, 5 Hill, 164.] See, also, In the Matter of Leggat, 162 N. Y. l. c. 443, where the detention was in a civil case.

In the instant case the prosecuting attorney was actually cognizant of the proceeding and the formal notice required by the statute was, therefore, unnecessary, and would have served no useful purpose. We would not be understood as holding, however, where actual notice did not exist, that the statute should not be complied with as a condition precedent to the legality of the hearing.

It follows from the reasons stated that the habeas corpus proceeding should be quashed, and it is so ordered.

Woodson, J., concurs; Graves andFaris, JJ., concur in separate opinion by Graves, J.; Lamm, G. J., and Brown and Bond, JJ., dissent.

GRAVES, J.

I concur in all of this opinion except that portion which discusses the constitutionality of the law which creates the excise commission for St. Louis county. As to the conclusion reached in this portion of . the opinion I simply desire to express no opinion .at this time nor in this case. This because it is not necessary to a determination of the instant case. In the instant case petitioner’s petition for the writ of habeas corpus is based on the sole ground of the invalidity of this Act of 1913, He does not challenge the validity of the law under which he was actually arrested and in legal custody. He, on the other hand, challenges the validity of a law which may be incidentally involved in the trial of his criminal charge, but which itself is not at the base of such criminal charge The writ of habeas corpus may, and has been issued, where the validity of the law forming the basis of the criminal charge is attached in the application for the writ, but it is going too far to say that the judge trying a habeas corpus case can adjudicate the validity of laws not at the basis of the criminal charge. Petitioner in this case only sought such an adjudication. He so limited the matter in his petition for discharge. It was but a shrewd attempt to have litigated a question which cannot be litigated in a habeas corpus case, and in so far as my brother’s opinion touches this question, I most heartily concur.

That question disposes of this case without further ado. Let the validity of the law urged be decided in a case wherein it comes up as a vital issue, so that our pronunciation thereon may be more than mere obiter. My brother reasons well upon the extraneous law, and it may be when presented in a proper case that I will concur in his views, but I prefer to express no opinion now. I, therefore, concur in the result reached, and in the portion of the opinion as above indicated.

Faris, J., concurs in these views.


source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    THE STATE ex rel. S. S. McMILLAN v. L. B. WOODSIDE, Judge, et al.
    In Banc,
    February 10, 1914.
    1. JURISDICTION: Injunction: Notice of Application. Jurisdiction of the circuit court, in the sense of power to act, in the matter of granting a preliminary injunction to restrain the county court from approving a contract to build a bridge, is not conditioned upon a showing of a previous notice of an application therefor.
    2. -: -: -: Reasonable Conduct. Where the notice was given of an application for a preliminary injunction as soon as the plaintiffs were apprised of the place and time fixed for a hearing, and though the time was short it was shortened to accord with the departure' of the judge in an emergency, and upon an understanding that the defendants would not appear, and was granted after plaintiffs were required to agree to try the case at a special term, which would be called, if defendants desired, there was nothing injudicial in granting the writ.
    3. -: -: "fo Restrain County Court from Contracting for Bridge. The circuit court has. jurisdiction to restrain the county court from approving and authorizing the letting of a contract to build a bridge, to be paid for out. of the revenue, if the amount of money so to be used, as shown by the petition therefor, is in excess of the revenues of the county under the constitutional limit and the contract would be violative of the statutory prescription for the creation of an indebtedness.
    4. -: —--: -: Power of County Court: Discretionary. As to the matter of determining the necessity for a bridge the county court has full powers of decision; and in that respect, its determination is discretionary and unreviewable by any other court.
    5. -: -: -: -: Ministerial. But as to contracting for the building of a bridge and paying for the work, the powers of the county court are administrative and subordinate to the Constitution and statutes, and are controllable by superior courts; and if the court attempts to approve a contract to build a bridge which would be in disregard of the 'Constitution and statutes, it can be restrained by the circuit court through its writ of injunction.
    Prohibition.
    Writ quashed.

      Holmes & Holmes and G. H. Davis for relator.
    (1) Our statutes provide that the remedy by writ of prohibition shall he granted to prevent usurpation of judicial power, and in all cases where the same is now applicable according to the principles of the common law. R. S. 1909, sec. 2622; State ex rel. v. Groodier, 195 Mo. 561; State ex rel. v. Reynolds, 209 Mo. 161. (2) Prohibition will issue to stay proceedings by injunction to enjoin county courts from proceeding in accordance with the provisions of the statutes for the construction of bridges. The circuit court having no jurisdiction of the subject-matter, the respondent Woodside could not legally grant the temporary injunction. County courts have exclusive; jurisdiction, and in these matters their acts are administrative and ministerial. Vitt v. Owens, 42 Mo. 512; Decker v. Diemer, 229 Mo. 296; State ex rel. v. Co. Ct. Clark County, 41 Mo. 44; State ex rel. v. Goodier, 195 Mo. 551; State ex rel. v. Thomas, 183 Mo. 220; State ex rel. v. Bollinger, 219 Mo. 204’; Hockaday v. Newson, 48 Mo. 196; Trainer v. Porter, 45 Mo. 336; Jefferson Co. v. St. Louis Co., 113 Mo. 619; County Ct. v. Township; 10 Mo. 679; Railroad v. St. Louis, 92 Mo. 160; State ex rel. v. Aloe, 152 Mo. 466; Thomas v. Mead, 36 Mo. 232. (3) The writ of prohibition will lie to restrain the unlawful exercise of judicial functions by inferior tribunals. State ex rel. v. Elkins, 130 Mo. 90; Harrison Co. v. Burris, 84 Mo. App. 654; State ex rel. ,v. Goodier, 195 Mo. 551; Hockaday v. Newson, 48 Mo. 196; Vitt v. Owens, 42 Mo. 512; State ex rel. v. Co. Ct. Clark Co., 41 Mo. 44; State ex rel. v. Sale, 188 Mo. 496. '(4) There is no merit in the contention of respondents that relator cannot maintain this action. The writ is granted at the instance of any one of the parties to the suit, and even to a stranger. Trainer v. Porter, 45 Mo. 336; State ex rel. v. Co. Ct. Clark Co., 41 Mo. 49; Thomas v. Mead, 36 Mo. 248, (5) The' most frequent and important, -if not the only grounds for equitable interference by injunctions in actions at law, are fraud, accident and mistake. Spelling on Injunctions and Other Extraordinary Remedies (2 Ed.), sec. 38. An injunction will be granted only to prevent the violation of a positive right. And mere negligence in a matter of official routine, though under the proceeding by virtue of which .an officer’s claim to act be irregular, will not warrant an injunction against him. ■Spelling on Injunctions and Other Extraordinary Remedies (2 Ed.), sec. 610. It is another well-established rule that injunction will not issue to prevent officers from doing acts authorized by valid law, enacted with a view to promoting the public welfare, whatever the opinion of the court as to the wisdom or expediency of such laws. Spelling on Injunctions and Other Extraordinary Remedies (2 Ed.), sec. 611. The rule that courts will not interfere to restrain or control the exercise of discretionary power also' has special application in cases where injunction is sought to restrain the construction of works of public improvement, such as streets, sewers, bridges and public buildings; and when such matters are by law entrusted to municipal bodies equity will not revise or control the exercise of discretionary powers as to the terms upon which, or the manner in which the improvement shall be made. Spelling on Injunctions and Other Extraordinary Remedies (2 Ed.), sec. 689. (6) The county court was proceeding lawfully and in' strict conformity with statutory requirements, had the exclusive jurisdiction to do the thing contemplated, and the circuit court is without jurisdiction to entertain injunction. R. S. 1909, sec. 10490; Art. 3, chap. 102, R. S. 1909. (7) The temporary injunction was issued without reasonable notice. Before an injunction shall be granted to stay any proceedings, the applicant should give reasonable notice. R. S. 1909, sec. 2517; Tuttle v. Blow, 176' Mo. 172; State ex rel. v. "Wear, 135 Mo. 261. Where the application is made without notice to the defendant, and the allegations, of the bill are stated upon information and belief, the proceedings cannot be sustained upon the hearing in the absence of proof of their correctness. Spelling on Inj. etc. (2 Ed.), sec. 29. The verification being only on “knowledge and belief,” is insufficient. Fisher v. Patton, 134 Mo. 54; Pattison’s Forms for Missouri Pleading, sec. 407; Bacon’s Missouri Practice, sec. 835; 2 High on Injunctions (3 Ed.), secs 1567, 1568', 1569. There being no reasonable notice as required by the statute and the verification being insufficient, no restraining order could issue without proof of the correctness of the allegations of the petition. Spelling on Injunctions (2 Ed.), sec. 29. (8) Suppose the allegation in the petition for injunction, to the effect that the revenue for the year 1913, available for bridge purposes, is much less than the estimated cost of the bridge, is true, then, unless such shortage can be made up by transfer of other funds available for the purpose, the county court cannot lawfully draw warrants to pay for the bridge in excess of the revenue available for that purpose. If it should do so, such warrants would be void in the hands of every person who might become the holder. Sec. 12, art 10, Constitution; Thorn-burg v. School District, 175 Mo. 12; State ex rel. v. Neosho, 203 Mo. 40; Railroad v. Apperson, 97 Mo. 300. And certainly the taxes of the complainants could not be increased for the purpose of paying such void warrants, and they, have no ground for equitable relief on this score. Hopkins v. Lovell, 47 Mo. 102; Trask v. Livingston Co., 210 Mo. 592; Polly v. Hopkins, 11 S. W. 1084. .

      Frank H. Farris and George M. Reed for respondents.
    (1) The remedy by prohibition is. only employed to restrain courts from acting' in excess of their powers, and if their proceedings are within the limits of their jurisdiction prohibition will not lie. High’s Extraordinary Remedies (3 Ed.), par. 767. (2) In the exercise of jurisdiction by prohibition it is important to distinguish between the nature of the action which it is sought to prohibit and the sufficiency of the cause of action as stated in the proceedings in the pending litigation. The nature of the action itself determines the jurisdiction of the court over the subject-matter, regardless of the sufficiency of its presentations or statement. If, therefore, the action is of snch a nature as to fall within the jurisdiction of an inferior court, prohibition will not lie, merely because of insufficiency in the statement of the cause of action, in pleading, or because of insufficient proof to maintain the cause of action as stated. High’s Extraordinary Remedies (3 Ed.), par. 767a, 767b, 768; State ex rel. v. Muench, 225- Mo. 226. It may be safely asserted as settled law, and without exception, that unless the court sought to be prohibited is wanting in jurisdiction over the class of cases to which the pending case belongs, or is attempting to act in excess of its jurisdiction in a case of which it rightfully has cognizance, the writ will be denied. State ex rel. v. Tracy, 237 Mo. 118; State ex rel. v. Mills, 231 Mo. 50; State ex rel. v. Burchartt, 87 Mo. 539; O'stman v. Frey, 148 Mo. App. 283. (3) Injunction may be presented to the circuit court or judge thereof in vacation. R. S. 1909, sec. 2512. Temporary injunction may be granted when it shall appear by the petition that the plaintiff is entitled to the relief prayed for. R. S. 1909; sec. 2515. (4) Reasonable notice must be given the adverse party in such case, before an injunction can be raised. But no such notice is required in injunction suit to restrain other acts. R. S. 1909, secs. 2517, 2532. (5) The remedy by injunction shall exist to prevent the doing of any legal wrong whatever, whenever in the opinion of the court an adequate remedy cannot be afforded by an action for damages. R. S. 1909, sec. 2534. (6) The court may, under a proper showing, issue an injunction without notice to the other side, and it should do so whenever it is made to appear that an act ruinous to the plaintiff’s rights is contemplated and notice given to the defendant would enable him to accomplish it before the court could prevent it. Tuttle v. Blow, 176 Mo. 171. The only notice required by our statute of an application for injunction is, in case the injunction is sought to stay proceedings at law. Tuttle v. Blow, 176 Mo. 172. The circuit courts may issue injunction against judges of the county court at the instance and upon application of private citizens who are taxpayers. Newmeyer v. Railroad, 52 Mo. 81; Rubey v. Spain, 54 Mo. 211; State v. Curators, 57 Mo. 178; Ranney v. Bader, 67 Mo. 479 ; Davis v. Hartwig, 195 Mo. 399; Blades v. Hawkins, 133 Mo. App. 328; Breimeyer v. Bottling Co., 136 Mo. App. 95; Martin v. Bennett, 139 Mo. App’. 243. The county court in the exercise of its function, acts sometimes judicially and sometimes ministerially and in an administrative capacity. Its judicial acts cannot be controlled by injunction, but its ministerial or administrative acts may. The county court in determining that a bridge is necessary, and that such bridge shall be built at the expense of the county, and in what manner and of what material the same shall be built, acts in a judicial capacity, but in advertising for bids, in the letting and making of contracts for the construction of said bridge, it acts ministerially, or in an administrative capacity. The injunction proceedings involved in this cause did not seek to restrain the judges of .the county court nor to control their action in determining that a bridge was necessary, or that it should be built at the expense of the county, or in what manner and .of what materials it should be built, or the probable cost thereof, but it did seek to restrain them from entering into what we deem an illegal contract, and doing other unlawful tilings which were purely ministerial or administrative. High on Injunctions (1 Ed.), par. 793; Constitution, sec. 12, art. 10'; Book v. Earl, 87 Mo. 246; Barnard v. Knox Co., 105 Mo. 389; Trask v. Livingston, 210 Mo. 582.
    STATEMENT.
    A number of taxpaying and voting property-owners and citizens of Pulaski county sued the judges of the county court and the highway engineer of that county, to restrain them from making and completing a contract for building a bridge and constructing the same across the Gasconade river to be paid for out of the revenue of the county at a cost of $8000, all of which was threatened to be done by the making and letting of a contract on the ensuing 6th day of June, 1913.
    The equities set up, were that by these acts a debt would be saddled upon the county in violation of law, in that the amount of money so to be used was largely in excess of the revenues of the county under the constitutional limit and conditions prescribed for the creation of such .indebtedness. [Constitution, sec. 12, art. 10.] That the defendant had failed to comply with any of the statutory conditions prescribed in the following act:
    ‘ ‘ Sec. 10490. If the county court be of the opinion that a bridge is necessary, and that such bridge shall be built at the expense of the county, said court shall determine in what manner and of what materials the same shall be built, and the probable cost thereof. It shall be the duty of the court aforesaid to require the county highway engineer to proceed to the spot where the bridge is to be built and make an accurate estimate of the cost of building the same according to any plan or plans ordered by the court and approved by the county engineer, or such as in his. opinion may be best, and without delay make report thereof; and thereupon the said court shall order the county engineer to let the •contract for the building of such-bridge, and may also provide for keeping the same in repair for not less than two nor more than four years., to be determined by the county court.” Other provisions are not material. [R. S. 1909, sec. 10490.]
    The petition prays among other things that the . defendants be enjoined “from making or entering into such contract themselves — for Pulaski county, and that it will enjoin and restrain the defendants, and each of them, from contracting for Pulaski county for the erection of said bridge, from agreeing to pay for the same from the revenue of Pulaski county, from drawing any warrants on the revenue of Pulaski county to pay for the same, from setting aside or appropriating any money to pay for said bridge from the revenues of Pulaski county, and from doing any act or thing tending toward such purpose, and for general relief. ’ ’
    Upon the presentation of a verified petition alleging the foregoing matter, to Hon. L. B. Woodside, he awarded a temporary injunction upon the execution of a bond for $1000, conditioned as required by law.
    Thereupon an application for a writ of prohibition was made to this court, which embodied the foregoing petition for an injunction then pending in the circuit court of Pulaski county and the above order granting a temporary injunction, and alleged that the verification was insufficient and that the notice given for the application for injunction was insufficient and that the writ of injunction was awarded on an ex parte hearing.
    The application for prohibition then denied all the grounds alleged for relief in the injunction suit, and averred that the respondent L. B. Woodside, circuit judge, had no jurisdiction to grant the same, that the time fixed by him for answering, - September, 1913, was an unreasonable delay, and the lapse of time before defendant in said suit could appeal would destroy the beneficial interest of petitioner. This application was made by a voting citizen and a property owner and taxpayer -who was not a defendant in the suit below. This court was pleased to grant its preliminary rule in prohibition on 8th of July, 1913.
    To which respondents made return, admitting the bringing of the suit by them in the circuit court and the orders made therein, and setting out the circumstances of the notice given of the application for temporary injunction, which, were, in substance, that the circuit judge was on the point of leaving his district for a vacation, and that upon receiving notice from him of the place where the application could be heard, they at once gave notice to the defendants, who by diligence might have been present when the application was heard at Cuba, Missouri, nine o’clock a. m. June 4, 1913, at which point Judge Woodside was to take a train for his summer vacation.
    Respondent L. B. Woodside made return that the acts complained of in the petition filed in his court were “ministerial acts and not judicial;” that a primafacie case was made by the petition of violation of the Constitution and laws in this respect, and, that being possessed of jurisdiction in such cases, he deemed it his duty to grant the temporary injunction prayed. That he granted the writ after being advised by telegram that the defendants in that suit would not be present. “That upon the issuance of said temporary writ your respondent judge required that the plaintiffs therein would consent and they did consent, to v the holding of a special term of court in Pulaski county within a short time, to try the issues therein raised by the injunction petition, if the defendants in said action so desired; and that your respondent informed counsel for defendants of such agreement and arrangement immediately after granting said temporary writ and that he as the judge of said court stood ready and willing and would have called and held a special term of his court in Pulaski county if the defendants in the injunction had indicated to him that they so desired. ’ ’
    Respondents further set up that jurisdiction of the cause by the circuit court was apparent on the face of the petition and the circuit judge was clearly within his power to act as such, in granting the temporary injunction, and denied the other statements of the application for the writ of prohibition.

      To this return relator filed a reply taking issue as to the sufficiency of the notice served on the defendants of the application for writ of injunction, and stated that on account of the distance of the residence of the defendant it was not practicable for them to be present within the time left after the service of the notice.
    Relator further rep-lied that Judge Woodside had no jurisdiction to restrain the defendants in the suit before him, claiming that the matters involved there were confided to the final discretion of the county court judges.
    Honorable C. C. Bland was appointed by this court to take testimony and report thereon. He reported service of the notice of the application for the temporary injunction and gave the dates when that was made upon defendants, and a conversation between Judge Woodside and Mr. Holmes, counsel for defendants, who had arrived a few moments after the granting of the writ, and who was told by Judge Woodside (then about to take a train for St. Louis) that plaintiff’s counsel had agreed to appear at a special term to try the case and that he “would call such term in a week or two if the parties, would then try it,” and that Mr. Holmes made no reply to this proposition, not having time to consider it, before the judge took the train.
    The commissioner also reported that certain exhibits referring to the proceeding of the county court in the bridge matter, were correctly copied from the record of that court in the exhibits to relator’s application for prohibition; that no evidence pro or con was offered, as to the recitals in these proceedings as to the moneys on hand or estimated for collection for bridge building. He further found that the highway engineer had visited the spot of the proposed bridge and inspected it and estimated the cost at $8000. The commissioner then made a separate finding as to the law of the case in which he held that the circuit court had no jurisdiction of the suit before it, for that the Legislature had given ‘ ‘ sole and exclusive control and jurisdiction over the subject of building bridges,” in the absence of fraud or bad faith, to the county court.
    Respondent Woodside filed a written protest to the taking of any evidence by the commissioner and he and the other respondents excepted to each item of the evidence admitted by the commissioner and to his re-' spective findings thereon and to his report in toto and to his legal conclusions.- The general grounds of these exceptions were: first, that the evidence was not receivable, because it related only to matters which might have been set up. as a defense on the trial of the issues of the injunction suit pending in the circuit' court; second, that as- to his report of the law, he had misconceived that and also misapprehended the issues and gave specific rea-s-on for these exceptions. -
    The case is now before us after argument on the qustions presented. ' ,
   OPINION.

BOND, J.

(After stating the facts as above)'. — ' I. We leave out of view the contentions of relator," that jurisdiction in the sense of power to act, on the part of the respondent circuit judge, as to the grant of a preliminary injunction, was conditioned upon a showing of previous notice of the application therefor, given to the defendant. Such is not the law, and no support for that view can be found either in the general principles of equitable jurisprudence or in the statutes of this State. '

The statute of this State provides that béfore the issuance of an injunction to stay “any proceedings” “reasonable notice in writing” by the applicant shall be given to the adverse party or his agent in this State, or if neither is within the State, by putting up such notice for ten days in the office of the clerk o.f the circuit court where the suit is filed. [R. S. 1909, secs. 2517, 2518.] The case brought here by the relator was not one to stay any suit or judgment or judicial proceedings, and therefore does not fall within the purview of the statutory rulés. It is, however, proper in ordinary cases asking for injunctive relief other than the staying of legal proceedings, that notice should be given of the application for the writ. But there may be extraordinary cases' of that character, in which the giving of such notice would - defeat the only purpose of the action; hence, equity has never prescribed it as a condition precedent in all cases to the grant of a temporary injunction. [R. S. 1909, sec. 2532; Tuttle v. Blow, 176 Mo. l. c. 171; Lewton v. Hower, 18 Fla. 872.]

The jurisdiction of the circuit court of the case made by the petition was not dependent upon the fact of previous notice to the defendant of the motion for temporary injunction. But before leaving that matter wie desire to say that in the case at bar the record discloses nothing unjudicial on the part of the circuit judge in granting the writ, since it appears that notice was given as soon as plaintiffs were apprised of the place and time fixed for the hearing, and while the time was necessarily shortened to accord with the departure of the judge it was also shown that he acted in an emergent matter and upon the understanding that the defendants would not appear and after requiring an agreement from plaintiffs to try the case at a special term of court which he would convene if defendants desired.

This was commendable conduct on the part of the judge and tended to conserve all the rights of the defendants. [R. S. 1909, sec. 2532.]

II. The question decisive of this case is, whether the petition for injunction presented a case of which the circuit court in the exercise of its equitable powers could take cognizance and grant relief? For it has been seen that there was no lack of power to grant the temporary writ, if the circuit court was possessed of' jurisdiction of the subject-matter of the action.

This the relator denies on the theory that the section of the statute quoted in the statement and other sections of the article headed “Bridges,” confide the whole matter of contracting for and building bridges to the unreviewable expression of the county court. We cannot agree to that view of the law. The statute in terms vests the county court with authority to decide to build a bridge. That power is given by its first sentence, to-wit: “If the county court be of the opinion that a bridge is necessary, and that srich bridge shall be built at the expense of the county, said court shall determine in what manner and of what materials the same shall be built, and the probable cause thereof.” The succeeding portion of the section and other sections following it, charged the county court with the duty of requiring the county engineer to view the location and report the cost of the contemplated bridge and thereafter to advertise the letting of the contract, which shall be subject to the approval or the rejection of the county court, and which contract the county court is forbidden to approve if “made in any other manner than is provided for by this article.” [R. S. 1909, sec. 10495.] These sections further provide that the county court has no power to pay the expense of bridge building out of any revenue later than the year of the contract and in using these it has no power to exceed the constitutional limit. [R. S. 1909, sec. 10496; Constitution of Missouri, art. 10, sec. 12; Trask v. County, 210 Mo. 582; Book v. Earl, 87 Mo. 246; Decker v. Diemer, 229 Mo. l. c. 331.]

From this enumeration of the powers and duties of the county court as set forth in the Revised Statutes 1909, secs. 10486-10504 inclusive, it is evident that in dealing with the subject of bridge building the county could, exercises two distinct and separate functions. As to the matter of determining the necessity for a bridge, the guardians of the interest of the county are clothed with full powers of decision. For no bridge could be lawfully built at the expense of the county unless the county court had first adjudged it to be necessary, and no superior judicial tribunal is authorized to restrain or coerce the county court in rendering its opinion on that particular matter, for to that extent its action is purely discretionary under the powers given to it by the language of the statute. [State ex rel. v. Thomas, 183 Mo. 220.]

But as to the power to contract for the work of building the bridge and to cause contracts to be let for that purpose and to pay for the work — in all these respects — the county court is only vested with power to act administratively and in subordination to the Constitution and statutes regulating its action and proceedings in such matters. As to these duties, the county court is not possessed of uncontrollable power or authority to act in disregard of the Constitution and laws and without being subject to any restraint or review of its action by courts of competent jurisdiction. All such acts and doings, if not wholly ministerial, are yet discretionary sub modo, and necessarily therefore may be restricted to the limits and conditions fixed for their exercise by the Constitution and the statutes. This essential distinction between the nature of the acts,, of the county court is overlooked in the contention of the relator. The present suit in equity was not brought to prevent the judgment and determination of the county court to build a bridge, but it was brought to prevent the enforcement of that decision by the making and letting of unconstitutional contracts on behalf of the, county and by disregarding the specific statutory prerequisites to such contracts.

The allegations of the petition present this view in clear and explicit terms and they furnish in this case the correct criterion of the jurisdiction of the lower court when attacked by prohibition. [High on Extra. Rem. (3 Ed.), 767B; State ex rel. v. Tracy, 237 Mo. l. c. 118-121; State ex rel. v. Muench, 225 Mo. l. c. 226.]

The power of a court of equity to enjoin a contract or a construction of a bridge in contravention of the Constitution and statutes is ample under equity jurisprudence as well as the statutes and laws of this State. [R. S. 1909, sec. 2534 et seq.; State v. Curators, 57 Mo. 178; Newmeyer v. Railroad, 52 Mo. 81; Davis v. Hartwig, 195 Mo. l. c. 399; Crampton v. Zabriskie, 101 U. S. 601.]

The cases relied on by relator do not support his contention. As far as they are in point they simply announce the doctrine that in the exercise of its “judicial function,” the county court cannot be controlled or interfered with by other courts; but none of them sustain the proposition that in the performance of such ministerial act as befits the agent of the people in constructing bridges for their benefit they are exempted from compliance with the Constitution or statute regulating these duties, or free from the control of courts of equity at the instance of the taxpaying citizens of the county. In other words, if the regulatory provisions of the Constitution and statutes are binding upon the judges of the county court, then they are not vested with limitless power in the matter of letting contracts and using the money of the county to pay for building bridges, and this being conceded it necessarily follows that a.court of equity is the proper forum to give preventive relief.

We think that Judge Woodside was possessed- of jurisdiction to try the case made by the petition filed in the circuit court of Pulaski county, and that the writ of prohibition was improvidently granted. It is therefore quashed.

All concur.