State ex rel. Attorney-General v. Flentge

49 Mo. 488

• Court: Supreme Court of Missouri
• Decided: March 15, 1872
• Status: Published

Opinion

Bliss, Judge,

delivered the opinion of the court.

This is a proceeding under the statute concerning clerks (Wagn. Stat. 259-60, §§ 18-23), to subject the defendant to trial in this court for a misdemeanor in office, and the relator is met by a motion to dismiss the same for want of jurisdiction. It is not disputed that the proceeding is according to the statute, but the act itself is so far resisted as being unconstitutional. This is an old enactment made under our former constitution, which, so far as the jurisdiction of the Supreme Court is concerned, was the same as the present one, yet no case has arisen in which the question has been raised.

In Vail v. Dinning, 44 Mo. 210, another statute was reviewed which attempted to give' this court original jurisdiction, and upoii full deliberation it was held to be unconstitutional. The principles settled in that case must control the present one. This court court has “ appellate jurisdiction only,” except that it may issue certain specified writs “ and other original remedial writs.” This statutory proceeding for trying a clerk for misdemeanor in office, can by no straining be brought within the exception, bio writ whatever is issued, and it is a naked attempt to impose an original duty upon the court forbidden by the constitution, and for the performance of which no adequate means are provided.

The proceeding is therefore dismissed.

The other judges concur.