SHERWOOD, J.
This is a proceeding in prohibition instituted by relators in vacation, before Judge W. C. Marshall of this court, the petition alleging among other things that David H. Eby, Judge of the Tenth Judicial Circuit of this State,' had taken cog[510]*510nizance of, and now entertains jurisdiction of twelve hundred and three informations, all of them of similar tenor and effect, a copy of one of them being filed with the petition; and that such informations related to alleged violations of what is known as the “Beer Inspection Law,” and charged relators with violation of same, and that unless said Eby, judge as aforesaid, were prohibited, he would proceed to try all of said informations at the June term, 1902, of the Pike Circuit Court, and prays that said Eby be prohibited from taking any further cognizanc'e of said informations or of any of them.
The information above referred to is the following: (
“State of Missouri, Plaintiff, vs. Anheuser-Busch Brewing Association, Adolphus Busch, George K. Busch and J. D. Bowman, Defendants.
“John W. Jump, prosecuting attorney within and for the county of Pike, in the State of Missouri, under his oath of office informs the court that one J. D. Bowman on or about the 16th day of March, 1900, at and in the county of Pike in the State of Missouri, did then and there unlawfully and willfully sell for the price of two dollafs to one B. A. Pappenfort, George Anderson, eight gallons of beer which said beer was then and there contained in a certain package, to-wit, a certain vessel in which beer is usually placed for sale, commonly called one-fourth barrel or keg, containing eight gallons of beer brewed and manufactured in the State of Missouri, which said package containing said beer so sold as aforesaid did not then and there at the time of the said sale thereof have placed upon said package the label and certificate of the said inspector of beer • and malt products of the State of Missouri, certifying that said beer contained in said package or one-fourth barrel had then and there been inspected and made from wholesome ingredients, to-wit, made from pure hops or pure extract of hops [511]*511or of pure barley, malt or wholesome yeast or rice, against the peace and dignity of the State. And the said John W. Jnmp, prosecuting attorney as aforesaid in and for the county and State aforesaid, under his. oath of office aforesaid, further informs the court that one Adolphus Busch, president of, George K. Busch, general manager of, and J. D. Bowman, agent of the .Anheuser-Busch Brewing association, a corporation, and the Anheuser-Busch Brewing Association, a corporation duly organized under the laws of the State of Missouri (said Anheuser-Busch Brewing Association being then ■ and there the keeper and owner of a certain brewery for the manufacture and brewing of beer and other malt products within this State), on or about the 16th day of March, 1900, at and in the county of Pike and the State of Missouri, did then and there have in their possession certain beer, brewed and manufactured in the State of Missouri, and did then and there unlawfully and willfully have, receive and offer for sale and sell for the price of two dollars to one B. A. Pappenfort, George Anderson, eight gallons of beer, which said beer was then and there contained in a certain package, to-wit, a certain vessel in which beer is usually placed for sale, commonly called one-fourth barrel or keg containing eight gallons of beer, brewed and manufactured in the State of Missouri, which said package containing said beer so sold as aforesaid did not then and there at the time of the said sale thereof have placed upon the said package the label and certificate of the state inspector of beer and malt products of the State of Missouri certifying that said beer contained in said package or one-fourth barrel had then and there been inspected and made from wholesome ingredients, to-wit, made from pure hops, or the pure extract of hops or pure barley, malt or wholesome yeast or rice, against the peace and dignity of the State.”
Then follows, in proper form, the prosecuting attorney’s affidavit to the information.
Against the various relators who are interested [512]*512in these proceedings, there were about five thousand of such informations filed by John W. Jump, the prosecuting attorney of Pike county.
The petition in this cause presents, in substance, the following points:
“1. That the corporations and their officers, re-lators herein, are residents of the city of St. Louis and manufacturers and brewers of beer in that city, and that said sales alleged to have been made in said infor-mations, were made by them in that city.
“2. That the local relators are residents of Pike county, Missouri, and are not manufacturers or brewers of beer and did not brew or cause to be brewed the beer described in said informations.
“3. That Judge David H. Eby is judge of the Tenth Judicial Circuit of which Pike county is a part and that he has and is entertaining jurisdiction of the twelve hundred and three informations herein mentioned and same were set for trial in said circuit court at its June term, 1902.
“4. That the information set forth in the pleadings is a true and correct copy of those pending against relators in said circuit court of Pike county.
“5. That the said alleged informations do not charge these relators with any offense against'the laws of the State of Missouri.
‘ ‘ 6. That from and after the 20th day of August, 1899, until the 15th day of April, 1901, the State of Missouri did not inspect beer and made no attempt to do so.
“7. That on April 15, 1901, these relators complied with the provisions of an act passed by the General Assembly of, the State of Missouri during the session of 1901, known as the Beer Compromise Act which said act was approved by the Governor on the date last aforesaid; and the relators and others paid in to the State Treasury for the benefit of the state revenue fund $19.1,250; and being ten cents on each and every barrel of beer of the capacity- of thirty-one gallons and in the same proportion for any other [513]*513quantity of beer sold for consumption in the State of Missouri after September 20, 1899, and prior to March 19,1901; and, that said payment of said money includes and pays the inspection fees on all the packages or cases of beer recited in the said twelve hundred and three alleged informations now pending in Pike county, Missouri, against relators.
“8. That at the time said compromise act was passed and approved and at the time relators complied with the provisions thereof and paid the said sum of $191,250 and the same was accepted by the State in full for fees provided by said act to be paid on account- of beer theretofore made and sold in the State without having been inspected, there was no charge of violating the said Beer Inspection Law pending against these relators in the said circuit court of Pike county, Missouri, and said informations now pending against relators charge them with no offense against the laws of this State.
“9. That all parties who complied with the provisions of the Beer Compromise Act are relieved of all fines, penalties and forfeitures incurred, if any, by reason of non-compliance with the Beer Inspection Law, prior to the 19th day of March, 1901.
“10. That said Beer Inspection Law being article 4 of chapter 117 of the Revised Statutes of Missouri for 1899 is unconstitutional and void in that it violates section 28, article 4; and sections 3, 4, 6, 7, 8, and 11 of article 10, and section 8 of article 11; and section 53 of article 4; and section 4 of the Bill of Rights of the Constitution of Missouri; and further violates the fifth and fourteenth articles of amendment to the Constitution of the United States; and section 10 of article 1 of the Constitution of the United States.
“11. That by. reason of the great multiplicity of suits, etc., and by reason of relators having no adequate way or remedy with which to meet the extreme conditions, and by reason of the injustice and oppression in causing relators to appear and defend against [514]*514said informations in the circuit court of Pike county, Missouri, and by reason of the want of jurisdiction of the said circuit court to try said causes, and by réa-'son of said judge proceeding in excess of his authority, etc., and by reason of relators having complied with the terms of the Beer Compromise Act, and by reason of other matters set forth in relators’ petition, relators ask that said provisional rule be made final and absolute. ’ ’
As the petition in full will accompany this opinion, it is thought unnecessary to do more for the present than to give a digest of it for the purposes of this discussion.
To the petition the respondent judge has filed this demurrer: “Now comes respondent David H. Eby and demurs to the petition and writ in this cause for the following reasons:
“First. Because said petition and writ do not state facts sufficient to constitute a cause of action, nor facts sufficient to entitle relators to the relief prayed for in their said petition, or to any relief from this court, or to the issuance of any writ to prevent the respondent as judge of the Tenth Judicial Circuit of Missouri and as judge of the Pike Circuit Court from continuing in the discharge of his official duty and hearing and determining the misdemeanor charges referred to in said petition.
“Second. Because there is a defect of parties defendant in this, to-wit: That the State of Missouri 'is the plaintiff in all of the cases pending in said Pike Circuit Court brought by informations being filed by the prosecuting attorney of said county, and the said State of Missouri or its legal representatives being a party interested in the disposition of said causes is not made a party defendant, and that the relators improperly and contrary to the provisions of section 4450, Revised Statutes 1899, bring their suit at the re>--lation of the State of Missouri when such suits should be brought by relators as plaintiffs.
“Third. Because the Supreme Court has no ju[515]*515risdiction of misdemeanor' cases except such derivative jurisdiction as it may acquire by appeal from the inferior courts of this State and it affirmatively appears from the petition of relators that they seek to he relieved from defending against the charge of having committed misdemeanors.”
The Beer Compromise Act referred to and pleaded in the petition reads this way:
“Section 1. The Governor is hereby authorized and empowered to compromise and settle all demands by the State for inspection fees prior to March 19, 1901, arising under the Act of May 4, 1899, known as the beer inspection law, and being article 4 of chapter 117 of the Revised Statutes of 1899, upon payment into the State Treasury, to the credit of the State revenue fund, of ten cents for each and every barrel of the capacity of thirty-one gallons, and in the same proportion for any other quantity of beer sold for consumption in this State after September 20, 1899, and prior to March 19, 1901.
“Section 2. Every person, who shall comply with the provisions' of section 1, of this act, and pay .into the State Treasury, on or before the 15th day of April, .1901, the sum stated therein, upon beer sold for consumption in this state by him during the time stated ■in. said section, shall be relieved from all fines, penalties and forfeitures incurred by him prior to March 19, 1901, under said act of May 4, 1899; and all prosecutions for such violations of said act prior to March 19, 1901, against parties who shall comply with section 1 of this act, are hereby barred: Provided, however, that this shall not apply to, or have any effect upon any prosecutions now pending in any of the courts of this State, but they shall be disposed of in the -same maimer as if this act had not been enacted.
“Section 3. Nothing herein contained shall be so construed as to relieve any party from any penalty, fine or forfeiture that may be incurred by him for any future violations of said act of May 4, 1899, nor shall the same interfere in any manner with the future en-[516]*516forcemeat of said statute; but it is only intended to provide for the adjustment of the inspection fees during the time the validity of said act has been under consideration in the courts.
“Section 4. It being important that a speedy adjustment and settlement of said matter be made in order that the costs and expenses of criminal prosecution may be avoided, an emergency has arisen within the meaning of the Constitution, and this act shall take effect and be in force from and after its passage and approval.
“Approved April 15, 1901.” [Laws 1901, page 181.]
1. The third ground of the demurrer raises a preliminary question necessary to be decided at the outset of this investigation, by saying in effect that the charges in these twelve hundred and three informations being for misdemeanors, and this court having no appellate' jurisdiction in that class of cases, hence, it has no original jurisdiction in such cases to award any of the original writs mentioned in section 3 of article 6 of the Constitution. This-position was once taken by this court (Britton v. Steber, 62 Mo. 370); but only once. Since then, it has become an everyday practice to award to the inferior courts and hear and determine such original writs whether we have appellate jurisdiction in the causes, in which they are issued, or not. [State ex rel. Bayha v. Philips, 97 Mo. 331; Ex Parte Arnot Carter, 166 Mo. 604, and subseq. cas.]
. The first ground of the demurrer is a general one, alleging that the petition does not state facts sufficient to constitute a cause of action nor to entitle relators to the relief prayed, etc. This, of course, challenges the petition in its totality, and equally of course it admits all facts which are well pleaded therein. The facts thus admitted by the demurrer are these: That the Anheuser-Busch Brewing Association was organized under the laws of this State, located in the city of St. Louis, Missouri, and engaged in the manufacture [517]*517and sale of beer. That Adolphus Busch and George Busch were residents of said city, and that said sale mentioned in said information was made by them in the city of St. Louis. That J. D. Bowman was a resident of the city of Louisiana in Pike county, Missouri, and is not a manufacturer or brewer of beer, and did not brew, or cause to be brewed, the beer mentioned in the information. That the respondent judge is judge of the Tenth Judicial Circuit of which Pike county forms a part, and is entertaining jurisdiction of the twelve hundred and three informations aforesaid; that said informations had been set for trial at the June term, 1902, of said Pike Circuit Court, and that respondent, unless prohibited from so doing, would proceed to try the same, and that the information set forth in the petition is a true copy of those pending in the circuit court of Pike county. That from and after the 20th day of August, 1899 (the day on which the Beer Inspection Act took effect) until April 15,1901, the State of Missouri did not inspect beer, and made no attempt to do so. That on April 15, 1901, relators complied with the provisions of the act known as the “Beer Compromise Act,” which was approved by the Governor on that date, and that relators and others then and there paid into the State Treasury, etc., $191,250, which amounted to ten cents per barrel for every barrel of beer, etc., sold for consumption in the State of Missouri after September 20, 1899, and prior to March 19, 1901; and that such payment includes and pays the inspection fees on all the packages, etc., of beer mentioned in said twelve hundred and three informations, now pending in Pike county _ against relators.' That at the time said payment was made, the State of Missouri accepted the same in full for fees provided by said act to be paid for beer theretofore made and sold without inspection, and at that time there was no charge of violating said Beer Inspection I/aw pending against relators in the Pike Circuit Court.
2. With these admissions before us, how stands [518]*518this causé as made by the pleadings and the statutory provisions already quoted?
The point is made on behalf of respondent that re-lators can ’not have prohibition because the lack of such jurisdiction has not been raised or pleaded in the lower court; and that this is elementary law. This view is frequently found expressed in text-books. [High Extr. Leg. Rem. (3 Ed.), sec. 773; 2 Spelling Inj. and Extr. Bern. (2 Ed.), sec. 1731]
But this is not the law if it is to be taken as invariably true; true without variation or shadow of turning. In fact there are so many exceptions to the hackneyed rule, that the doctrine it announces is now received with many degrees of allowance and, as will presently appear, is not an absolute touchstone of jurisdiction. In short, the fact of having pleaded lack of jurisdiction in the lower court is not by any means a sine qua non of jurisdiction in the supervising court to issue the provisional rule.
In the celebrated case of Mayor of London v. Cox, 2 H. L. Cas. (Law Rep. loc. cit. 252), the opinion of Mr- Justice Willes delivering the opinion of the other judges in the house, of lords, in the year 1867, is exhaustive of the learning on the subject. That was a case appealed from the court of exchequer to the exchequer chamber, and finally to the house of lords. Before deciding it, the lords requested the opinion of the justices of the queen’s bench on two questions, the second being as follows: “Whether the garnishees in the lord mayor’s court could maintain an action for a prohibition without having pléaded in the lord mayor’s court.” To which the justices unanimously responded that they could. This was in accordance with the unanimous decision both of the court of exchequer and exchequer chamber, which was accordingly affirmed in the house of lords.
This opinión shows very conspicuously that erron--eóus decisions- On the subject in hand have not .infrequently been made in England, and in this country,of course,-the -,number of-mistakes about" the matter [519]*519have not in all probability shown a greater falling off in numerical force.
The foundation for the writ of prohibition, as shown by the old books, consisted of: “1st, contempt of the crown, and disherison of it in taking on them judicial power where they have no. right; 2nd, is a damage to the party.” [Ede v. Jackson, Fortesc. 345.]
Elsewhere it is stated: “And the king’s courts that may award prohibitions, being informed either by the parties themselves, or by any stranger, that any court temporal or ecclesiastical doth hold plea of that whereof they have not jurisdiction, may lawfully prohibit the same, as well after judgment and execution, as before.” [2 Inst. 602, Com. Dig. Prohibition (E).]
In the Mayor’s case, supra, it is said: “The application for total want of jurisdiction may be made' either by the party or a stranger. In the answer of the judges to the third objection of the Articuli Cleri of 3 Jac. 1, it is laid down that ‘the king’s courts that may award prohibition being informed, either by the parties themselves or by any stranger, that any court, temporal or ecclesiastical, doth hold plea of that whereof they have not jurisdiction, may lawfully prohibit the same as well after judgment and execution as before.’ The jurisdiction,'therefore, does not, it seems, depend (for in the- case of the crown or a stranger it can not depend) upon the course of the pleading. However, in the latest case in which this subject was considered, Re Foster (4 Best & S. 187), upon motion for a prohibition to the court of divorce after sentence, although it was laid down that upon the application of a stranger the interference of the court is discretionary, yet the right of a party aggrieved was fully recognized. ‘I entirely concur,’ said Cockburn, C. J., ‘in the proposition, that although the court will listen to a person who is a stranger, and who interferes to point out that some other court has exceeded its.jurisdiction,■ whereby some wrong or grievance has been- sustained, yet that -is not ex debito justitiae, but a matter upon which the'court may -properly exercise .its discretion, [520]*520as distinguished from the case of a party aggrieved, who is entitled to relief ex debito justitiae if he suffers from the usurpation of jurisdiction by another court.’ ”
And elsewhere in discussion of this subject, the eminent justice remarks: “The writ of prohibition at suit of a party is not, as it was thought to be by some eminent judges at the. close of the seventeenth century (see per Holt, C. J., Clay v. Snelgrave [1 Ld. Raym. 578], and the decision of the same judge in Wharton v. Pits [2 Salk. 548], overruled in Velthasen v. Ormsley [3 T. R. 315]), in the discretion,of the court. This erroneous opinion may in part account for the fact that the cases reported to have occurred, in the seventeenth century and the early part of the eighteenth, under the head of prohibition, are not to be reconciled with one another, or with earlier and later authorities. The law upon'this question of discretion is thus stated in the judgment of the Queen’s Bench in Burder v. Veley [12 Ad. & E. 263]: ‘If called upon we are bound to issue our writ of prohibition as soon as we are duly informed that any court of inferior jurisdiction has committed such a fault as to found our authority to prohibit, though there may be a possibility of correcting it by appeal. . . . The question then remains, what are the defects that authorize and require us to issue the writ of prohibition? The answer is, that they are in every case of such a nature as to show a want of jurisdiction to decide the case before them: (Gardner v. Booth [2 Salk. 548]). In whatever stage that fact is made manifest to us, either by the crown or by one of its subjects, we are bound to interposed The writ, however, although it may be of right, in the sense that upon an application being made in proper time, upon sufficient materials, by a party who has not by misconduct or laches lost his right, its grant or refusal is not in the mere discretion of the court, is not a writ of course, like a writ of summons in an ordinary action, but is the subject of a special application to the court upon affidavit, which application, and the proceedings thereupon, are now regulated by the Act of 1 Will. 4, [521]*521c. 21. Before that act the proceedings were commenced by mere suggestion, which, with exceptions that do not include the present' case, need not have been verified by affidavit. The proceeding was qui tarn, and it supposed a contempt in disobeying an imaginary precedent writ of prohibition. To that course of proceeding only were the decisions relied upon, to the effect that the court will not interfere upon ‘mere suggestion’ before plea applicable. They amount to this, that before plea the court, in its discretion, would not interfere upon a bare suggestion without an affidavit. ’ ’
In another place, in support of the last-cited remark, the learned justice quotes from two standard authors: “The same law is laid down in Comyn’s Digest [‘Courts,’ p. 15], where, after stating that the defendant may plead to the jurisdiction of the inferior court, it is said: ‘So upon an affidavit of the fact he may have a prohibition without pleading to the jurisdiction.’ ” (Per 2 J. i. cont. Lut. 1026.)
“In Blackstone’s Commentaries [vol. 3, p. iii], where an account of the practice before the statute is given, the ‘grievance’ to be remedied by prohibition is stated to be that of ‘encroachment of jurisdiction, or calling one coram non judice to answer in a court that has no legal cognizance of the cause;’ and no mention is made of its being necessary to plead.”
And the case cited also announces that where want of jurisdiction is apparent on the face of the proceedings, there prohibition will be granted by the supervising court, no preliminary step in the inferior court being necessary; and that at all events, the failure of the party applying to make objection or plea in the court below, does not touch the question of jurisdiction. There are many authorities on this point: De Haber v. Queen of Portugal, 17 Q. B. 169; Farquharson v. Morgan, 63 L. J. Q. B. 474; 19 Am. and Eng. Ency. of Law, 273, note; Shortt on Prohibition, 459; Keough v. Grime, 53 N. E. 135; Havemeyer v. Superior Court, 84 Cal. 327.
In the somewhat recent case, of State ex rel. v. Aloe, [522]*522152 Mo. 466, this court, speaking through Valliant, J., after citing with approval the case last mentioned, ruled that a failure to' apply to the lower court as above indicated, did not bar this court from issuing a rule nisi, and taking jurisdiction of the cause.
. 3. Under the foregoing authorities, does this record present on its face the posture of there being an absolute want of jurisdiction in the lower court to try the one thousand, two hundred and three informa-tions filed against relators in the Pike Circuit Court? That it does, we entertain no doubt; and these are our reasons therefor:
The demurrer admits all the substantial, material and traversable allegations of the petition. Those admissions so far as necessary to quote them, are the following : That respondent herein is judge of the Pike Circuit Court; that he is entertaining jurisdiction of the one thousand, two hundred and three Informations aforesaid; that said informations had been set for trial at the June term, 1902, of said court, and that unless prohibited from so doing, respondent would proceed' to try the same; that the information already copied is a true copy of those pending in the Pike Circuit Court; that on April 15, 1901, relators complied with the provisions of the act known as the “Beer Compromise Act,” which was approved on that date; that on such date, relators and others paid into the State Treasury, etc., $191,250, which amounted to ten cents per barrel for every barrel of beer, etc., sold for consumption in the State of Missouri after September 20, 1899, and prior to March 19, 1901; that such payment includes and pays the inspection fees on all the packages, etc., of beer mentioned in said one thousand, two hundred and three informations now pending in Pike county; that at the time said payment .was made, the State of Missouri accepted the same in full for fees provided by said act to be- paid for. beer theretofore made and sold without inspection, and at that time .there was no' charge of violating said “Beer inspection Law,” pending against relators'in the Pike .Circuit Court. ..
[523]*523Here then we have’presented a case where the State of Missouri, after passing an act for compromising and settling all fees, fines, penalties and forfeitures for beer sold in this State between September 20, 1899, and March 19, 1901; the. payment of the necessary snm by relators on the day appointed, which snm included the fees due on said one thousand, two hundred and three informations, there being no informations pending against relators at the time of such payment; and yet relators are being prosecuted for the payment of some of the very same fees covered by said payment, and for recovery of some of the very same fines of which they were in express terms relieved by the act pleaded.
That compromise act, its terms having been complied with, as admitted by the demurrer, constituted a' contract between the State and relators which the State could not impair without violating constitutional guarantees, by prosecuting relators for fees which they had already paid, and for fines from which they had already been released and relieved. In such case, re-lators, having, as the demurrer admits, bought their peace of the State on the State’s own terms, the State is estopped as well as all her agents, to reopen and reagitate questions then and there definitely settled and finally determined.
In short, the act in question is an amnesty or statutory pardon. As observed by Lewis, C. J., in Davies v. McKeeby, 5 Nev. loc. cit. 373: “But the word ‘pardon’ is generic, and includes every character of pardon. Amnesty is a general pardon granted to a class of persons by law or proclamation. The act in such case is as properly a pardon as' if simply granted to an individual, by deed. Indeed, it seems to'be generally conceded, in the United States, that the word ‘pari don’includes amnesty. Thus, Mr. Webster defines the latter word to be, ‘an act of oblivion; a general pardon of the offenses of subjects against the government, or the proclamation of such pardon.’ So, Worcester de[524]*524fines it as ‘a general pardon, granted to those guilty of some crime or offense.’ ”
Discussing this subject and the variant meanings of the terms “amnesty” and “pardon,” in reference to a statute of North Carolina, which exempted from punishment those who as Federáis or Confederates, had, during the Civil War, done certain things, which, but for the statute, might have been punishable, Reade, J., said: “Pardon and amnesty are not precisely the same. A pardon is granted to one who is certainly guilty, sometimes before; but usually after conviction. And the court takes no notice of it, unless pleaded, or in some way claimed by the person pardoned; and it is usually granted by the crown or by the executive. But amnesty is to those who may be guilty, and is usually granted by Parliament, or the Legislature; and to whole classes, before trial. Amnesty is the abolition or oblivion of the offense; pardon is its forgiveness. The act under consideration is both. . . . Ordinarily, a pardon must be pleaded at the trial or claimed after conviction, and a failure to do so is a waiver of its benefits. But a general act of amnesty and pardon must be taken notice of by the courts like any other public law. It can not even be waived by the persons embraced.” [State v. Blalock, 61 N. C. (Phillips’ Law) loc. cit. 247, 248; see, also, 2 Cyc. Law and Proc., p. 284, and notes.]
The “Beer Compromise Act,” being an act of general amnesty, enacted by the Legislature in favor of the class to which relators belong, there was no manner of necessity for relators to plead it in bar of the prosecution in the lower court, since they could not have waived it if they would. And that act being a public law, the respondent judge was bound to take notice of it, and could not ignore it if he would.
And yet, notwithstanding the contract made by relators with the State in pursuance of an express law enacted for the purpose; notwithstanding a solemn contract made, a consideration paid and accepted, and legislative amnesty granted, the respondent judge [525]*525places himself on this record as intending to try relalators on the very charges which the act, on compliance with its terms, says shall he tarred. We do not hesitate to say that such intended course of conduct is indubitably beyond the jurisdiction of the trial court, and such fact is made apparent on the face of this proceeding.
4. There is yet another ground upon- which I regard relators entitled to tlie relief they seek, and that is I still deem the “Beer Inspection Law,” as it is commonly called, unconstitutional. Judge Cooley says: “When a statute is adjudged to be unconstitutional, it is as if it had never been. Rights can not be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the decision was made. And what is true of an act void in toto is true also as to any part of an act which is found to be unconstitutional, and which, consequently, is to be regarded as having never, at any time, been possessed of any legal force.” [Cooley’s Const. Lim. (6 Ed.), 222.]
This view has been frequently followed by this court: Ex Parte Smith, 135 Mo. 223; In re Flukes, 157 Mo. 125; State v. Julow, 129 Mo. 163; Ex Parte Neet, 157 Mo. loc. cit. 537; Ex Parte Slater, 72 Mo. 102; Ex Parte Arnold, 128 Mo. 256; Ex Parte O’Brien, 127 Mo. 477; Ex Parte Craig, 130 Mo. 590; Ex Parte Lucas, 160 Mo. loc. cit. 266, et seq.
These cases proceed on 'the theory that an unconstitutional law is no law at all, and consequently any supposed crime designated and denounced in such unconstitutional law is no crime, and therefore, the court which tries a party for such assumed offense, transcends its jurisdiction, and consequently such person is entitled to his discharge on habeas corpus. [Ex parte Smith, 135 Mo. loc. cit. 229.]
And it has been determined that if any given law is unconstitutional, this, of itself will afford ground [526]*526for relief by prohibition. [Ex parte Roundtree, 51 Ala. 42; State ex rel. v. Young, 29 Minn. 474; 19 Am. and Eng. Encyc. Law (1 Ed.), 270, and cas. cit.]
Of course, if the law is unconstitutional which, is made the basis of the proceedings, the easels one where '.it is obvious on the face of such proceedings that the trial court has no jurisdiction, and prohibition will consequently lie.
I am unable to distinguish the “Beer Inspection Law” from the act in regard to a State license tax on distilled liquors, recently passed upon by this court in State v. Bengsch, 170 Mo. 81, and held by a majority of this court to be unconstitutional, on the ground of violating both the State and Federal Constitutions by authorizing unequal taxation. And even if the fees demanded by the “Beer Inspection Law,” of the manufacturer who manufactures beer in this State for sale in this State, be not regarded as a tax, yet no one can deny that that law by exacting no inspection fees from the manufacturer, who manufactures beer in this State to be exported outside of this State for sale, unjustly discriminates against the home manufacturer for home consumption, and thereby brings itself under the ban of the first section of the fourteenth amendment to the Federal Constitution by denying to such manufacturer “the equal protection of the laws,” and this point was one on which paragraph 10 of the opinion in Bengsch’s case was made to rest, and to which a majority of this court agreed. .1 think, therefore, that prohibition ought to go in this case for the further reason that the “Beer Inspection Law, ’ ’ is unconstitutional, and consequently, a violation of it could not amount to a crime.
5. It has, however, been urged by counsel for respondent that inasmuch as relators have a remedy by appeal, etc., in consequence of this, prohibition can not be granted. But this is an erroneous view, because in a case like this, where relators, if they could not have the relief prayed, would be compelled to go to trial in tiuelve hundred and three cases; then, if defeated, would have to give bond in each case, take an appeal [527]*527in each case, pay for a transcript in each, case, pay a •docket fee in each case of ten dollars, such fees amounting in the aggregate to twelve thousand and thirty. dollars, as well as counsel fees in each court, consequently, it must be conspicuously obvious that such appeals, although available, would be “inadequate to meet the emergencies of the case, or afford the redress to which the injured party is entitled.” [2 Spelling Inj. and Extr. Rem. (2 Ed.), sec. 1725, and cas. cit.]
The final point is insisted on that this proceeding should have been instituted by relators in their own names, as plaintiffs, and not on the relation of the State of Missouri, and. section 4450, Eevised Statutes 1899, is cited in support of this position. But that section is only applicable in the circuit courts, and not to this court when original proceedings are instituted here. Proceedings of this sort which originate in this court, are governed not by the code, but. by the general law on the subject. [Ib., sec. 4456; State ex inf. v. Beechner, 160 Mo. loc. cit. 86.]
The premises considered, and being mindful of our duty to exercise our superintending control over all inferior courts and keep them' within the bounds of their rightful jurisdiction, we make the provisional rule absolute.
Burgess, C. J., and Robinson, J., concur in toto, and still adhere to their dissenting views in the Bixman case. Marshall, J., expresses no opinion as to the constitutionality of the “Beer Inspection Law,” but concurs in the other portions of the opinion. Brace, Gantt and Valliant, JJ., do not agree that the “Beer Inspection Law” is unconstitutional, as stated in paragraph 4 but adhere to their views as expressed in the Bixman case; they, however, concur in the residue of the opinion.