NORTON!, J.
This is a proceeding in mandamus. The alternative writ issued in virtue of the original power of this court in that behalf provided.
The relator is the prosecuting attorney of St. Louis county, duly elected and qualified. The respondent is judge of the circuit court of the same county and presides in division No. 2 of that tribunal. The question for consideration relates to, and the writ is invoked with a view of vindicating, the right of the prosecuting attorney to appear - in the circuit court and defend a suit in which the county is interested.
The relevant facts out of which the controversy arises are as follows: It appears that one Hornberg presented to the county court of St. Louis county an [31]*31application for a dramshop license, in proper time and in dne form, and the county court declined to consider or act upon it; that thereafter, on the same day, Hornberg sued out an alternative writ of mandamus against the judges of the county court, John Wiethaupt, William Buermann and Albert Wilmas, commanding them to appear in the circuit court, division No. 2, and show cause, if any they had, why they, as judges of the county court, should not proceed and act upon the petition of Hornberg for a dramshop license. To this mandamus proceeding so instituted in Division No. 2 of the circuit court, over which the respondent here, Judge Wurdemann, presides, the respondents in that proceeding—that is, the judges of the county court, Wiethaupt, Btaermann, and Wilmas —made their return in writing through counsel other than relator, the prosecuting attorney of the county. Upon the coming in of the return of the judges of the county court in that case, relator, prosecuting attorney, appeared and moved the circuit court to permit him to assume control of the defense in the matter, on the ground that it was one in which the county was interested, and that, therefore, the statute made it incumbent upon him to do so. This motion and request the court denied, as though it were competent for the county judges to exclude the prosecuting attorney with respect to the matter of the defense of that case and employ other counsel to control and manage it. It is in assertion of his right to control and manage the defense of the mandamus suit pending in the circuit court against the judges of the county court with respect to the subject-matter of the application of Horn-berg for a dramshop license that the prosecuting attorney, as relator, sued out the writ of mandamus here involved, and it is insisted the respondent, as judge of the circuit court, denied to him a dear legal right in refusing to permit the prosecuting attorney [32]*32to assume control and manage the defense of that case.
In disposing of the question in judgment, it is essential to consider the relevant sections of the statute prescribing the duties of the prosecuting attorney, and to consider, too, the interests involved in the mandamus suit pending in the circuit court against the judges of the county court of St. Louis county.
It is to be said, first, that under the statutes both the judges of the county court and the prosecuting attorney are elected by the people of the county and with a view of serving its inhabitants in the discharge of the duties annexed by law to the respective offices of county court and prosecuting attorney. The office of the county court and of the prosecuting attorney are, of course, separate.and independent and neither is necessarily subservient to the other. The county court consists of three judges, elected by the people, but its members are not required to be learned in the law, while one of the qualifications prescribed for the prosecuting attorney is that he shall be so learned. By statute, certain judicial duties and certain other ministerial and administrative duties are committed to the county court, while other statutes commit certain duties which appertain to the profession of a lawyer to the prosecuting attorney as the law officer of the county. In respect of the latter, sections 1007 and 1008', E. S. 1909, are to be here considered.
“The prosecuting attorneys shall commence and prosecute all civil and criminal actions in their respective counties in which the county or State may be concerned, defend all suits against the State or county, and prosecute forfeited recognizances and actions for the recovery of debts, fines, penalties and forfeitures accruing to the State or county; and in all cases, civil and criminal, in which changes of venue may be granted, it shall be his duty to follow and prosecute or defend, as the case may be, all said causes, for which, [33]*33in addition to the fees now allowed by law, he shall receive his actual expenses. When any criminal case shall be taken to the courts of appeals by appeal or writ of error, it shall be their duty to represent the State in such cases in said courts, and make out and cause to be printed, at the expense of the county, and in cities of over 300,000 inhabitants, by the city, all necessary abstracts of record and briefs, and if necessary appear in said court in person, or shall employ some attorney at their own expense to represent the State in such courts, and for their services shall receive such compensation as may be proper, not to exceed twenty-five dollars for each case, and necessary traveling expenses, to be audited and paid as other claims are audited and paid by the county court of such county, and in such cities by the proper authorities of the city.” [Section 1007, R. S. 1909.]
‘ ‘ He shall prosecute or defend, as the case may require, all civil suits in which the county is interested, represent generally the county in all matters of law, investigate all claims against the county, draw all contracts relating to the business of the county, and shall give his opinion, without fee, in matters of law in which the county is interested, and in writing when demanded, to the county court, or any judge thereof, except in counties in which there may be a county counselor. He shall also attend and prosecute, on behalf of the State, all cases before justices of the peace, when the State is made a party thereto: Provided, county courts of any county in this State owning swamp or overflowed lands may employ special counsel or attorneys to represent said county or counties in prosecuting or defending any suit or suits by or against said county or counties for the recovery or preservation of any or all of said swamp or overflowed lands, and quitting the title of the said county or counties thereto, and to pay such special counsel or at[34]*34torneys reasonable compensation for their services, to be paid ont of any funds arising from the sale of said swamp or overflowed lands, or ont of the general revenue fund of said county or counties.” [Section 1008, R. S. 1909.]
It is to be observed that section 1007, above copied, makes it the duty of the prosecuting attorney to defend all suits against the State or county, and, indeed, it is conceded in the instant case that, if the mandamus proceeding in the circuit court against the three judges of the county court were a suit against the county, no one could deny or gainsay the right of the prosecuting attorney to control and manage the defense therein. Touching this question, it is said in .the brief of respondent, “If an action is brought against the county, the prosecuting attorney can defend it and no county court has power to compel him to act otherwise than his judgment dictates. He can also institute an action for the county and in his conduct of the case he is absolutely independent of all control.” We quote this as a concession in the argument here, but it is said it does not apply to the instant case, in which the prosecuting attorney insists upon his right to appear.
In Kansas, the statutes concerning the county commissioners and the county attorney are similar to those which obtain with respect to our county courts and prosecuting attorney. The matter of a suit against the county of Leavenworth being under consideration in that State, the Supreme Court stated the doctrine precisely as we understand it, touching the question of the right of the county commissioners or the prosecuting attorney to control the case in court. Of this the court said, in Clough & Wheat v. Hart, 8 Kan. 487, 494:
“The county attorney is elected by the people of the county and for the county. He is the counsel for the county, and cannot be superseded or ignored by [35]*35the county commissioners. His retainer and employment is from higher authority than the county commissioners. The employment of a general attorney for the county is not by the law put into the hands of the county commissioners, but is put into the hands of the people themselves. The county attorney derives his authority from as high a source as the county commissioners do theirs, and it would be about as reasonable to say that the county attorney could employ another board of commissioners to transact the ordinary business of the county as it is to say that the county commissioners can employ another attorney to transact the ordinary legal business of the county. Both would be absurd. It is the duty of the county attorney to give legal advice to the county commissioners, and not theirs to furnish legal advice to or for him.”
The doctrine of that case was affirmed in Waters v. Trovillo, 47 Kan. 197, 27 Pac. Rep. 822, and has never been questioned, so far as we have been able to ascertain. Other courts either quote and approve it, or proceed in the same view on fundamental reasons, as will appear by reference to the following cases in point: Board of Comm’rs of Logan Co. v. Jones, 4 Okla. 341, 51 Pac. Rep. 565; Board of Comm’rs of Logan Co. v. State Capital Company, 16 Okla. 625, 86 Pac. Rep. 518; Brome v. Cuming County, 31 Neb. 362, 47 N. W. 1050; Clark & Grant v. Lyon County, 37 Ia. 469.
But in the instant case, St. Louis county is not a party to the record in the mandamus proceeding pending in the circuit court against the judges of the county court, in which the prosecuting'attorney insists upon his right to appear, and the right asserted here by the prosecuting attorney proceeds on the ground that, though not a party, the county is “interested” in that suit. This is true, it is said, because, though the judges of the county court are respondents in the man-[36]*36damns against them, the suit proceeds to enforce the performance of a public duty on the part of the county court, of which they are members, pertaining to the matter of the dramshop license petitioned for on the part of Hornberg. In an early case in this court, the prosecuting attorney of the same county declined to permit the use of his name in a certiorari proceeding against the county court to remove and review the record of a dramshop proceeding, for that he deemed it his duty, under the statute, to represent the interests of the county, through appearing for the county court in the matter, and this court affirmed such to be the correct view of the duty of the prosecuting attorney. [State ex rel. v. Heege, 37 Mo. App. 338, 345.] Obviously such is the sound law of the question, for, though the judges of the county court themselves are respondents in the mandamus suit pending in the circuit court, it is clear the county is interested therein. The statutes (sections 1007 and 1008) are to be read together for they are in pari materia and pertain alike to the duties of the prosecuting attorney, which they annex to his office, and the officer is required by virtue of his oath to perform them. While section 1007, in so far as its consideration here is essential, applies more particularly to cases in which the county is concerned and suits against it, section 1008 imposes a duty on the prosecuting attorney in respect of all civil suits in which the county is “interested.”
It is clear that the county is interested in a civil suit in mandamus directed against the judges of the county court by which it is sought to compel them, through utilizing the franchises of their office, to issue a dramshop license in favor of any citizen, authorizing him to sell intoxicating liquors in the county. In respect of this matter, it is to be said the judges of the county court, as individuals, apart from their office and the franchises which inhere in it could confer no privilege under the law, and it is only because of their [37]*37office as county judges that they may he compelled to act thereou at all, and this is true though the writ runs against them as judges of the county court, rather than against the office of the county court eo nomine. The idea is to compel the judges, as individuals in whose hands the franchises pertaining to the office are accumulated, to exercise the powers of the office in acting upon the application for a dramshop license and thus proceed in the performance of a public duty affixed by statute. To say that St. Louis county is not even interested in such a proceeding involves but a partial view of the subject-matter. Under our statutes the county is pecuniarily interested in the matter of dramshop licenses, for a portion of the revenue received therefor goes into its treasury.
Moreover, since the case of Austin v. State, 10 Mo. 591, the sale of intoxicating liquors has been deemed unlawful in Missouri, because of its tendency to deprave public morals, and because of this fact the police power' is to be exercised with respect to it. Under the statute, only a law-abiding, assessed, tax-paying male citizen above twenty-one years of age may be licensed as a dramshop keeper at all. By other statutes, the dramshop keeper, though licensed, may be prosecuted for infractions of the law touching the sale of liquors as for misdemeanors, and the duty pertaining to such prosecutions is within the purview of the county as the unit of government. Then, too, the statutes expressly recognize and confer the right upon tax-paying citizens of the county to remonstrate against the issue of a dramshop license and thus endeavor to prevent the opening of such a place in the immediate locality. No one can doubt that these provisions obtain in the view that a dramshop tends to corrupt the morals of the people and entail injury through the depreciation in value of private property near or about it. When it is remembered the county is the unit of government with respect of such matters, [38]*38it appears to be clear enough that it is interested in a civil suit against the judges of the county court, which proceeds with a view of enforcing them, ex officio, to act upon an application for a dramshop license. Therefore, the county being interested in the subject-matter of the mandamus 'suit against the judges of the county court, the statute (Sec. 1008) imposed the duty upon the prosecuting attorney to control and defend that case. His right no one can dispute, for the statute pointedly prescribes and affixes it as a duty upon him in all cases in which the county is interested, and this, too, in addition to the duties affixed by the prior section (1007} where the suit is against the county.
But it is said the mandamus against the judges of the county court of St. Louis' county is a personal proceeding against them and does not run against the court as the representative of the county. The case of State ex rel. v. Burkhardt, 59 MIo. 75, is urged upon us in support of this view. But it is obvious the question suggested was not decided there. It appears in that case that both a school district and Moniteau county claimed certain money, taxes collected, and then in the hands of the collector of taxes for the county. The school district sued out a mandamus against the county collector to enforce the payment to it. The county collector made his return to the writ, by which he set forth the controversy about the money in his hands, as though he were a mere disinterested stakeholder, and prayed that the county of Moniteau might be heard by its prosecuting attorney in that case. Thereupon the county, by its prosecuting attorney, filed what was termed an “interplea” to be made a party to the mandamus suit against the collector.. It is to- be noted from this that the return of the county collector was in the nature of a bill of interpleader, whereby it was sought to bring the several claimants for the fund before the court and as parties to the action, to the -end of acquitting him of responsibility-[39]*39while such claimants litigated the subject-matter. Then, too, in the interplea filed, Moniteau county prayed the issuance of a peremptory writ of mandamus commanding the county collector to- pay the money to the county. On a hearing the circuit court gave judgment dismissing the “interplea” of Moniteau county and awarded a peremptory writ of mandamus to the relator—that is, the school district—against Burkhardt, the collector, commanding him to pay the relator the sum of $280.80. Prom this judgment the county perfected its appeal to the Supreme Court, but the respondent collector did not, and it was there ruled the county had no standing in court in that case.
Manifestly, this judgment was a proper one, for the case was neither one of interpleader nor was it competent for the county to become a party thereto in the manner pursued. The court declared, and the rule is well established by numerous decisions to the same effect since that case, that “the general provisions of the practice act, authorizing all persons having or claiming an interest in the subject-matter of the controversy to be made parties plaintiff or defendant, do not apply to proceedings by writ of mandamus, ’ ’ and this alone- is the substance of the decision. However, in that ease, the Supreme Court recognized the subject-matter as one in which the county was interested and said, “the county, through its prosecuting attorney, with the consent of the defendant, Burkhardt, might, in a return in his name, have urged as a defense most, if not all, the matters set out in the petition filed by it in the cause.” But though the court said that, as the county was interested in the matter, the prosecuting attorney might, “with the consent of Burkhardt,” set forth its claims in a return of the respondent, Burkhardt, it did not decide either that it was not the duty of the prosecuting attorney to do so or that he could not do so without the consent of Burkhardt. The county being interested [40]*40in the subject-matter there involved in the mandamus between the school district and the county collector, it was certainly competent for it to be heard in the case, and this, too, by utilizing the name of its officer, the collector, in maldng its defense in the return preferred by him.
Moreover, it is true, too, as the court said, that the prosecuting attorney could set forth the county’s claim with the consent of Burkhardt, the collector, in the return of that officer, but the mere fact that the court said this could be done with his consent does not conclude the matter to the contrary, for that was all it became necessary for the court to decide in disposing of the controversy then in hand, in that no question was made with respect to the right of the county to utilize the collector’s return without his consent. From a study of the case, it appears clear enough that the Supreme Court recognized the county was interested in the subject-matter of that suit and recognized, too, that it was competent for the prosecuting attorney to appear in its behalf and assert its defense touching the same, but the method pursued to do so was not a proper one under the practice act, for that no warrant appeared to enable the county to become a formal party to the suit; and as Burkhardt, the collector against whom the judgment in the circuit court was given, had not appealed, Moniteau county could not do so. In concluding the opinion, the court said, “Moniteau county cannot legally complain of a judgment rendered solely against another party, and this court has no authority whatever on the appeal of Moniteau county, to affirm, or reverse that judgment.”
This case in nowise decides that it is not the duty of the prosecuting attorney to' appear in a mandamus case in which the county is interested. Neither does it decide that mandamus is purely, a personal proceeding which may not touch the office when the officer is sued as such concerning the alleged failure to per[41]*41form an official duty. On the contrary, it appears to hold that the office is touched, and because of this fact it is the duty of the prosecuting attorney to appear in such a case for the county and defend its interests. But to do so, the prosecuting attorney should set forth the county’s defense to the mandamus against its officer in the return of the respondent county officer, as he seeks to do in the instant case. Obviously, if it be the official duty of the prosecuting attorney under the statute to thus appear, and one which he is sworn to perform, then its performance on his part cannot depend upon the consent of the respondent county officer in the mandamus, and such county officer should not be permitted to defeat the prosecuting attorney in the performance of his official duty by withholding consent to put the interests of the county forward in his return. The point is the Supreme Court did not decide that the prosecuting attorney could not set forth the interests of the county in the respondent collector’s return without his consent, but decided that such officer’s return was the proper pleading in which to set forth the interests and defend the county and merely remarked that he could do so with his (the respondent, collector’s) consent, and no one will dispute the proposition thus stated.
The case of U. S. v. Boutwell, 84 IT. S. 604, is also urged upon us in support of the argument that the writ of mandamus is purely personal and does not reach the office. That was a mandamus which' proceeded against Boutwell, the secretary of the treasury, and after he resigned that office, the question presented related to the right to substitute Richardson, his successor, as respondent therein. The court denied this right on the theory that the duty sought to be enforced was a personal one to Boutwell and said, ‘ ‘ The writ does not reach the office.” Though that case has been approvingly cited, a limitation on the doctrine [42]*42it asserts is now well recognized in subsequent cases in tbe same court.
In discussing the Boutwell case, tbe Supreme Court of the United States says, in Warner Valley Stock Co. v. Smith, 165 U. S. 28, 33, “Tbe cases, in wbicb it has been held by tbis court that an abatement takes place by tbe expiration of tbe term of office have been those of officers of tbe government whose alleged delinquency was personal and did not involve any charge against tbe government whose officers they were. ’ ’
To tbe same effect is United States ex rel. v. Butterworth, 169 U. S. 600, where it is pointed out that tbe duty considered in tbe Boutwell case was one wbicb, though omitted by a public officer, partook of a personal character in that it involved a discretion peculiar to him wbicb might be otherwise exercised by bis successor. Then, too, in Thompson v. U. S., 103' U. S. 480, tbe Boutwell case and tbe rule it reflects in respect of such personal duties is discussed and distinguished from such duties as appertain to and lie in such an office as a board of commissioners. As to such commissioners, it is said tbe duty savors rather of a public character and may be enforced even against their suecessors in office, and concerning tbis tbe court says, “To say otherwise would be a sacrifice of substance to form.”
Tbe case of Commissioners v. Sellew, 99 U. S. 624, was a mandamus involving tbe board of commissioners of á county in Kansas. It was argued, on tbe authority of tbe Boutwell case, that tbe writ of mandamus did not reach tbe office, but went alone to tbe members of tbe board of commissioners and was, therefore, purely personal in character. In answer to tbis, tbe court says, “One of tbe objects, in creating such corporations, capable of suing and being sued, and having perpetual succession, is that tbe very inconvenience wbicb manifested itself in Boutwell’s case [43]*43may be avoided. In this way the office can he reached and the officer compelled to perform its duties, no matter what changes are made in the agents by whom the officer acts. The board is in effect the officer, and the members of the board are but the agents who perform its duties. "While the board is proceeded against in its corporate capacity, the individual members are punished in their natural capacities for failure to do what the law requires of them as the representatives of the corporation.” (The italics are our own.)
These mpre recent cases in the Supreme Court of the United States are referred to merely to portray that the idea the proceeding in mandamus is personal in character is not to be extended beyond the sense of the rule, when to do so would sacrifice the substance of its efficacy to mere technical words or form.
However this may be, with us in Missouri, there can be no doubt on the question here in judgment, for the Supreme Court has pointedly determined it in a recent case, as will appear by reference to State ex rel. v. Fraker, 166 Mo. 130, 140, 65 S. W. 720. In that case the court says, “Ever since Platte County Court v. McFarland, 12 Mo. 166, mandamus has been regarded as the proper proceeding to compel a recalcitrant county court to do its duty. [See, also, Riley v. City, 31 Mo. App. 439.] Besides, the writ of mandamus, is, in modern practice, treated as an ordinary writ of right, issuable as a course upon proper cause shown. ’ ’
It is trne the proper practice is to direct the writ against the justices of the county court by name, as judges of the county court, but when this is done, as is true in the instant case, the office is touched "if the subject-matter is one within the purview of that tribunal. [State ex rel. v. Fraker, 166 Mo. 130, 65 S. W. 720; Commissioners v. Sellew, 99 U. S. 624.] See, also, State ex rel. v. Grates, 22 Wis. 210, 214, where it is said, on this subject, “So far as the advancement of [44]*44the principal remedy is concerned, it is to be regarded as a proceeding against the officer, and not against the individual.” [See, also, State ex rel. v. Warner, 55 Wis. 271, 285, 286; People v. Collins, 19 Wend. (N. Y.) 56; Maddox v. Graham, 2 Met. (Ky.) 56; People v. Shout, 16 Johns, 60; Pegram v. Commissioners, 65 N. C. 114.]
Touching the argument that there is a constitutional question involved in the mandamus suit pending between Hornberg, relator, and the county judges, which precludes the jurisdiction of this court in the present controversy, in which the prosecuting attorney is relator, it is to be said that it is not sought to invoke an order of this court in or pertaining to the merits of that case. The only right sought to be vindicated here is that of the relator, prosecuting attorney, to appear in his official capacity in the case against the county judges as the duly elected and qualified representatives of St. Louis county. Moreover, if the prosecuting attorney is the proper officer to set forth the defense of the interests of the county in that case, then the constitutional question asserted is to be treated as not within the record in that case at all, for the reason the proper officer of St. Louis county to raise or prefer such question has not done so. In other words, the return of the county judges, made in their own behalf, through excluding the prosecuting attorney from participation therein in behalf of the county, is to be treated as without avail.
If it be true that the mandate of the alternative writ is broader in its terms than the law warrants, the question is not a serious one under the practice' which now obtains, for it is competent to amend it and award the peremptory writ for so much of the relief as is proper. [See State ex rel. v. Baggott, 96 Mo. 63, 71, 8 S. W. 737; State ex rel. v. Hudson, 226 Mo. 239, 264, 126 S. W. 733.]
[45]*45Therefore, it appearing that it is the clear legal right of the prosecuting attorney to appear in and to control, manage, and defend the mandamus suit pending in division No. 2 of the circuit court of St. Louis county against the judges of the county court as such, the alternative writ of mandamus will he modified so as to vindicate this right only, and, as thus modified and amended, made peremptory to that extent alone. It is so ordered.
Allen, J., concurs. Reynolds, P. J., dissents.
Judge Reynolds deems the decision of the court contrary to the cases of State ex rel. v. Nortoni, et al., 201 Mo. 1, 98 S. W. 554; State ex rel. v. Burkhardt, 87 Mo. 533; State ex rel. v. Burkhardt, 59 Mo. 75; State ex rel. v. Fraker, 166 Mo. 130, 65 S. W. 720; State ex rel. v. Broaddus, 207 Mo. 107, 105 S. W. 629, and therefore requests that the cause be certified to the Supreme Court for final determination, and it is so ordered.