State Ex Rel. McNamee v. Stobie

92 S.W. 191, 194 Mo. 14, 1906 Mo. LEXIS 148

• Court: Supreme Court of Missouri
• Decided: February 26, 1906
• Status: Published

Opinions

FOX, J.

This is an original proceeding in this court. It is a petition or application by relators addressed to this court asking for the issuance of a writ of prohibition. The petition was filed by the relators on July 28,1905, and the grounds for relief and the particular relief sought are thus plainly stated:

“Come now the relators herein, George T. McNamee, Patrick McKenna, Con Meehan, Patrick Kirk, Henry Meyer, Sydney Sears, John Kavanaugh, John McCarthy, Timothy Danaher, George Williams, Thomas Keily, Frank McKenna, Gratiot Cabanne, R. L. Killian, Hugh McFarland, James Burke, George Greeley, Charles Madsen and J ames Hunt, and give the court to understand and be informed that said relators are now and were at all times hereinafter mentioned citizens of the State of Missouri and residents of the city of St. Louis therein; that said relator, George T. McNamee, is now and was at all of said times, a captain, the relator Patrick McKenna, a lieutenant, and each of the other relators a member of the metropolitan police force of the city of St. Louis, duly appointed, commis-: sioned and qualified as such and are now officers of the State of Missouri; that respondent, Frank Stobie, was then and still is, an acting, justice of the peace of Central township of St. Louis county, in the State of Missouri, and Fred Lenz, constable of said township.

“Relators further give the court to understand and be informed that Hon. Joseph W. Folk, Governor of the State of Missouri, by virtue of the authority vested in him by the Constitution and laws of the State of Missouri, on the 21st day of July, 1905, issued and delivered to Hon. A. C. Stewart, president of the Board of Police Commissioners of said city of St. Louis, a communication in words and figures as follows, to-wit:

“ ‘OFFICE OF THE GOVERNOR.

STATE OE MISSOURI.

City of Jefferson.

July 21,1905.

“ ‘ Hon. A. C. Stewart,

President Board of Police Commissioners,

St. Louis, Mo.

“ ‘Dear Sir:

“ ‘Information having come to me that a state of lawlessness exists in St. Lonis county; that men hacked by millions of wealth and political influence are openly committing felonies by registering bets on horse races; that dramshop keepers in flagrant defiance of the statutes keep their places open on Sunday; that men are openly held up and robbed in the orgies and the general debauchery following the violations of this law; that gamblers ply their trade uninterrupted and scoff at the authority of the State; that the laws of the State are nullified and the statutes of the State trampled in the dust, and the honor of the State assailed without interference or hindrance, and that the local officials either cannot or will not uphold the laws there:

“ ‘Whereas, such conditions cannot be tolerated in Missouri; and

‘ ‘ ‘Whereas, it is the sworn duty of the executive to execute the laws of the State; and,

“ ‘Whereas, the metropolitan police force of the city of St. Louis is by the Scheme separating the city and county, which was voted upon by the people of the whole county in accordance with the Constitution, given the same jurisdiction in the county as in the city; and,

“ ‘Whereas, the Governor as the supreme conservator of the peace throughout the State has the right to call on the metropolitan police force as a part of the military arm of the State, to preserve peace and order and suppress outlawry:

“ ‘Now, therefore, in order to maintain the peace and dignity of the State and to preserve the majesty of the laws of the State, you are hereby directed to instruct the Chief of Police of the city of St. Louis to detail fifty officers or more for duty in St. Louis county with orders to proceed, with all convenient speed, to Delmar race track in said county of St. Louis, and there arrest any and all persons feloniously registering bets, and to seize and hold as evidence all money, papers and paraphernalia connected with said felonies. "When so arrested the felons will he taken by the officers before some justice of the peace, of the county and warrants sworn out for them, with the officers as witnesses, in the usual way. The arrests must continue from day to day so long as the felonies are committed. The officers should be further instructed to see that the dramshop laws and the gambling laws are observed and to close all dramshop found to be open contrary to the statute in such cases made and provided, and to arrest all persons found to be violating such laws. These outlaws, when so arrested, will be turned over to the sheriff, and warrants sworn out for them before a justice of the peace, in manner and form above set out. Every arrest should be by the officer who himself sees the crime comr mitted, and by no other.

“ ‘Very respectfully,

“ ‘Jos. W. Folk, Governor.’

“That thereupon the Hon. A. C. Stewart, president of said Board of Police Commissioners, issued the following order to Hon. Mathew Keily, Chief of Police of said city of St. Louis, under whose orders the relators were acting in all of the matters hereinafter mentioned:

“ ‘July 23rd, 1905.

“ ‘Hon. Mathew Keily,

Chief of Police,

Four Courts, City.

“ ‘Sir:

“ ‘I herewith hand you a letter from the Governor of the State of Missouri concerning a state of lawlessness said to be existing in St. Louis county and requiring the aid of the police officers to suppress the same. Please give careful attention to the contents of the Governor’s letter and comply therewith as promptly as possible. A. C. Stewart,

“ ‘President of Police Board.’

“That thereupon the Hon. Mathew Keily, Chief of Police as aforesaid, ordered the relator George T. Me Namee, as captain of said police force, to take with him the other relators herein and proceed to Delmar race track and there to carry ont the orders contained in the communication from the Governor of the State of Missouri, as hereinbefore set out. The relators further give the court to understand and be informed that the ‘Delmar Jockey Club’ is a corporation duly created and organized under the laws of the State of Missouri, and was such at the times herein mentioned and that said corporation was the owner at said times and still is of the said Delmar race track; that said race track is partly in the city of St. Louis; that the line between the city and county of St. Louis passes through said track; that said corporation by its articles of association declares that one of the purposes of the said ‘Delmar Jockey Club ’ is to own race tracks and grounds and to engage in pool-selling, book-making and registering bets on the exhibition of speed and on races at said tracks and premises and to let.the right to others to do the same; that on the 16th day of June, 1905, the said Delmar Jockey Club was permitted and suffering pools to be sold and bets to be registered upon its race track upon races tó be run thereon and has ever since continued so to do in direct violation of the act of the General Assembly of this State, entitled ‘An act prohibiting bookmaking and pool-selling and prescribing a penalty therefor,’ approved March 21st, 1905; that said bookmaking, pool-selling and registering bets were done on that part of said race track located in St. Louis county, but that the race track and the enclosure thereof extended into the city of St. Louis; that many persons were in the habit of going from the city of St. Louis to •the said Delmar race track for the purpose of and were there engaging in book-making and selling pools and registering bets upon the races being run upon said track and were thereby committing felonies under the .statutes of this State; that these facts were known to the relator George T. McNamee and the other relators herein.

“And the relators further give the court to understand and be informed that heretofore, to-wit, on the 24th day of July, 1905, relators were informed and had good reason to believe and did believe that divers persons were engaged on that part of said Delmar race track located in the county of St. Louis, in book-making, and in recording and registering bets and in selling pools within the enclosure, booths and buildings of said Delmar Jockey Club, said bets being registered and pools sold upon the results of the trial of speed and power of endurance of beasts, which was to take place upon said Delmar race track, and the selling of said pools and the registering of said bets then and there being carried on constituted a felony under the laws of this State; that said registering of bets and pool-selling were done in the presence of some of the relators herein, and the said George T. McNamee, the captain in charge of the policemen at said race track, was informed thereof and was notified that persons within said enclosure were then in the act of violating the criminal laws of the State and that felonies were being committed within said enclosure; that thereupon he demanded admission into said enclosure for himself and the other .relators herein, as officers and citizens of the State of Missouri, for the sole and only purpose of arresting and taking before the proper magistrate, to be disposed of according to law, such persons as might be engaged in the commission of said felonies therein, and that upon such permission being denied, the relators acting by and under the orders of the Governor of the State of Missouri hereinbefore set out, let down or unclasped the chain across the entrance of said race track in ' the county of St. Louis and the State aforesaid and went into said enclosure, without injuring said property, and for the sole purpose of arresting the persons engaged therein in violating the criminal laws of the State, as they were ordered and directed to do by the chief executive of said State; that thereafter, to-wit, on the 24th day of July, 1905, respondent William Mathews filed an affidavit with the respondent Frank Stobie as justice of the peace of Central township, in 'the county and State aforesaid, charging relators with throwing down and opening the gate at the entrance of said race track, and then and there undertook to attempt to institute, before said Stobie as such justice of the peace, a criminal prosecution as for a misdemeanor against the relators .and each of them for their action as policemen and officers of the State of Missouri in letting down said chain or unclasping the same in order to enter said enclosure to make the aforesaid arrests; that at the time said affidavit was filed and said criminal proceedings begun, before said Stobie, justice of the peace as aforesaid, respondent well knew that said chain was thrown down or unclasped and said premises entered by the relators without injury to the property of the said Del-m,ar Jockey Club and in the manner and only for the purposes aforesaid; that the acts of the relators constituted no offense under the laws of this State, but upon the contrary thereof were done in the performance of their duty as officers and citizens; that said Frank Stobie as such justice of the" peace had no jurisdiction to entertain or proceed with a criminal prosecution against relators based upon the facts above stated and that it was in abuse of his judicial power so to do; that nevertheless said respondent Stobie assumed jurisdiction of said criminal proceedings against the relators and although no information was filed with him by the prosecuting attorney of St. Louis county and notwithstanding he had no reason to believe relators were likely to try to escape or to avoid prosecution, the said Stobie, a justice of the peace, immediately upon the filing of said affidavit, issued and delivered to respondent Lenz, as constable, a warrant, commanding him to arrest relators and each of them and to bring them before him forthwith to answer to the charge contained in said affidavit, and said proceedings are still pepding before said Stobie as justice of the peace and respondents are threatening to have relators taken into custody under said warrant, and to force them to a trial before said justice.

4 4 And the relators further give the court to understand and be informed that the only object and purpose of said pretended criminal charge before said justice of the peace against the relators and the sole purpose of the prosecution thereof are to hinder, impede and obstruct the relators in the performance of their duty as policemen, and as officers and citizens of the State and to protect from arrest persons engaged upon said Delmar race track in violating the said act of the General Assembly of the State of Missouri, approved March 21st, 1905, to prohibit book-making and pool-selling and to prescribe a penalty therefor, and hereinbefore mentioned ; and to thwart and render of no avail the efforts of the Governor of the State to enforce said- law and said proceeding against the relators in an abuse of the judicial power and jurisdiction of said justice of the peace; that it would be a great hardship and expensef or all the relators to suffer arrest upon said charge and appear before said justice and contest the case through the courts and that, if said respondents are permitted to continue said prosecution, numerous other similar prosecutions are threatened and will be begun and carried on to the great annoyance, worry and cost of relators, and an unseemly conflict will arise between the subordinate judicial officers and the executive department of the government.

44Your relators therefore show to this honorable court that in proceeding against them under the charge made in said affidavit filed with him by said Mathews as prosecutor the said justice of the peace is acting in excess of his jurisdiction and authority and in grievous abuse of his official power, and in order to protect your relators against the hardships, injustice and oppression involved in requiring them to defend against said pretended criminal charge predicated upon their acts in enforcing the laws of the State under the directions and' by order of the Governor thereof under the circumstances hereinbefore set forth, pray that they may have a writ of prohibition directed to the said Frank Stobie, justice of the peace of St. Louis county, Missouri, and to the respondents Mathews and Lenz, prohibiting them from taking further action in said proceedings against the relators and prohibiting said justice of the peace from taking further cognizance or jurisdiction thereof and that this honorable court in the exercise of its superintending control over the inferior tribunals of the State prohibit said respondents from interfering with or obstructing the relators in the performance of their duties by said criminal proceedings and that relators he granted all such relief as may he appropriate and necessary in the premises, to protect them against said unwarranted and illegal proceedings.”

The facts as stated in the petition were duly verified by one of the relators, and on the 27th of July, 1905, a preliminary rule in prohibition was granted in vacation of the Supreme Court returnable to the Supreme Court of Missouri in Banc on Tuesday, October 10,1905. Upon the return day of the writ the respondents interposed a demurrer to the petition of the relators. The grounds of the demurrer are thus stated:

‘ ‘ The respondents demur to the petition of the relators, for the reason, that said petition does not state facts sufficient to constitute a cause of action in prohibition in that:

‘ ‘ 1. The police force of the city of St. Louis were not given by the Scheme separating the city and county of St. Louis, the same jurisdiction in the county as in the city.

“2. The police force of the city of St. Louis are .without jurisdiction in the county of St. Louis, except to enforce a warrant, or warrants for a person, or persons, charged with an offence or offenses committed in the city, a situation which is affirmatively shown to have not existed when the relators invaded the premises of the Delmar Jockey Club.

‘£ 3. The Governor of Missouri has no right or authority to call on the police force of the city of St. Louis to preserve peace and order and to suppress outlawry in the county of St. Louis.

“4. That even if the Governor had such authority, the assertions of his proclamation to the President of the Board of Police Commissioners set out in the petition, if true, did not constitute or show a state of either lawlessness or outlawry in St. Louis county.

“5. That there is no law of Missouri which prohibits the registration of bets upon horse races, the act of the.General Assembly entitled ‘An Act to prohibit book-making and pool-selling, and prescribing a penalty therefor,’ approved March 21, 1905, having been enacted in violation of section 28 of article 4 of the Constitution, in that it contains more than one subject, to-wit, book-making and pool-selling, which are not germane, or akin in character.

‘ ‘ 6. That the petition affirmatively shows that the relators were guilty of a trespass upon the property of the Delmar Jockey Club, in that they forced an entrance upon the premises of said jockey club, merely to carry out an order or proclamation issued by the Governor of the State, which was without legal force or effect, which conferred no' authority upon any of the relators, and which was merely a bombastic effusion recognizable as a warrant for official action under no rule of conduct known to the law.

“7. That so far from the respondents and especially the respondents, who- are positively a justice of the peace and a constable, being without jurisdiction in the premises, the petition affirmatively shows that each was clearly within the law, that the justice was not usurping judicial power, and that there is no principle of law to which the writ of prohibition can he made applicable in the premises, or upon the facts.

££ 8. That the petition affirmatively shows that the relators were and are possessed of a full and adequate remedy, that the case sought to be made is at best merely one of error which could, or can be corrected on appeal or writ of error, that the relators not being residents of the county, as their petition shows, the justice was required by the statute to immediately issue his warrant upon sworn information being made of the commission by them of a criminal offense, that the respondent, who is constable, was in duty bound to execute the writ issued to him by the justice, and that to prohibit the procedure begun as shown by the petition, is not to prevent an unseemly conflict between subordinate judicial officers and the executive department of the State, but to involve the administration of the laws in utter confusion, to try by the writ matters cognizable only by the officers designated by the laws and determine upon prohibition an issue triable only as provided by the statute, there being no room for confusion except in the imagination of the relators and no conflict except as provided, without warrant of law, by the unprecedented tirade of the Executive.

““Wherefore respondents pray judgment,” etc.

“Upon October 27, 1905, relators in proper form filed their motion for judgment upon the pleadings and this cause was submitted to the court upon the record as herein indicated and is now before us for consideration.

OPINION.

It is manifest from the record in this cause that we are confronted with but one question, that is, upon the facts stated in the petition of relators, are they entitled to the relief sought, and is this court warranted in affording such relief by the issuance of its extraordinary writ of prohibition, as prayed for in the petition?

At the very inception of the consideration of the sufficiency of the allegations in the petition as a basis for the issuance of the writ prayed for, it is well to first ascertain the grounds urged by relators upon which this court can safely predicate its action, should their request for the writ be granted. Learned counsel for relators frankly state that the principles upon which the judgment must ultimately rest are few and simple, and concede and say in the brief now before us that “the subordination of the military to the civil power is not involved. The record does not demand a consideration of the circumstances under which the militia may be properly used to suppress riots, insurrections or lawlessness.” Nor is it urged, either in the oral argument or brief of counsel, as a basis upon which to predict the issuance of the writ of prohibition prayed for in this cause, that the relators (who were police officers) were in St. Louis county at the place designated in the petition, as a part of the military arm of the State, for the purpose of executing the law, as contemplated by article five, section six, of the Constitution of this State. This eliminates those questions from the discussion of this cause and our attention must be directed to those principles so ably presented by counsel for relators, which must ultimately form the basis of the conclusions reached in this proceeding.

Little is said in the petition as to the nature of the charge before the justice of the peace, against the relators. It is alleged that “on the 24th day of July, 1905, respondent William Mathews filed an affidavit with the respondent Frank Stobie, as justice of Central township, in the county and State aforesaid, charging relators with throwing down and opening the gate at the entrance of said race track, and then and there undertook and attempted to institute, before said Stobie, as such justice of the peace, a criminal prosecution as for a misdemeanor against the relators and each of them for their action as policemen and officers of the State of Missouri in letting down said chain or unclasping the same in order to enter said enclosure to make the afore.said arrests. ” We do not find a copy of the affidavit of Mathews with the petition, nor has our attention been called to the fact that such copy accompanies the pleadings. It would be much more satisfactory and more in harmony with the usual and ordinary practice in applications of this character, where this court is requested to issue its extraordinary process, prohibiting a judicial tribunal from further acting or proceeding, either in a criminal or civil proceeding, to accompany the petition with a copy of the files' and process issued, which furnish the basis of the asumption of jurisdiction. In the absence of a copy of the complaint of William Mathews, filed with the justice of the peace, which was the basis of the action of the justice in issuing his warrant for the arrest of the relators, the complaint of Mathews must be treated as a complaint against the relators in a criminal prosecution under the provisions of the laws of this State, of which complaint the justice had jurisdiction.

The complaint of Mathews being filed, the justice assumed jurisdiction and issued his warrant under the provisions of section 2750, Revised Statutes 1899, in which it is provided: “That complaints subscribed and sworn to by any person competent to testify against the accused may be filed with any justice of the peace, and if the justice be satisfied that the accused is about to escape, or has no known place of permanent residence or property in the county likely to restrain him for leaving for the offense charged, he shall immediately issue his warrant and have the accused arrested and held until the prosecuting attorney shall have time to file an information.”

It is insisted by relators that the justice of the peace having “no reason to believe that the relators were likely to try to escape or avoid prosecution,” there was no lawful authority or jurisdiction to issue a warrant for the arrest of relators based upon such complaint. The petition of the relators shows upon its face that they were members of the metropolitan police force of the city of St. Louis, and therefore presumptively, at least, not residents of St. Louis county, either temporary or permanent. It is not essential to the issuance of a warrant by the justice that he should be satisfied that the accused is about to escape and avoid arrest, but under the second subdivision of the proviso of section 2750, supra, if the relators had no known place of permanent residence or property in the county, this furnished authority equally as satisfactory and clearly as legal as that under the first subdivision, where the justice must be satisfied that the accused was about to escape. The filing of the complaint by Mathews with the justice of the peace gave the justice jurisdiction of the subject-matter. The petition in this cause nowhere alleged that the relators were the owners of property in the county or residents thereof, but expressly avers that they were members of the metropolitan police force of the city of St. Louis, which presumably at least locates their residence in the city of St. Louis, and fully authorizes the justice to issue the warrant. The justice of the peace having obtained jurisdiction of the subject-matter, by the filing of the complaint by Mathews, and reasons provided by the statute, authorizing the issuance of the warrant being disclosed in the petition, renders it unnecessary to express an opinion as to whether or not this court would be warranted in issuing its extraordinary writ (the justice having acquired jurisdiction of the subject-matter) prohibiting the prosecution of a criminal proceeding begun in pursuance of the provisions of section 2750, on the ground alone that the justice had prematurely is sued Ms warraut, without being satisfied that the accused was about to escape or had no permanent residence or property in the county. We confess it would be a novel proceeding to ascertain the fact that the justice was satisfied or not satisfied with the requisite conditions of the statute, which would authorize him to issue his warrant. Who is to determine when the justice is satisfied? The statute says, “If the justice be satisfied,” and if the authority to issue the warrant must "be settled by a court, it might be confronted with the proposition that the justice would declare that he was "the one under the express provisions of the statute to he satisfied and the court might say to the justice, you are not satisfied, and had no authority to issue the warrant.

Our attention is directed by counsel for relators "to the case of McCaskey v. Garrett, 91 Mo. App. 354. It will be observed in that case that the underlying principles which authorize this court to issue its writ of prohibition, were not involved and not even discussed. It was an action for malicious prosecution. The basis of “the action was that the defendant had filed a complaint with a justice of the peace charging the plaintiff with .a criminal offense; a warrant was issued upon, that complaint and nothing further was done, and the plaintiff was discharged. The justice of the peace testified and stated substantially that he had no reason for issuing the warrant, except that the defendant told him that the prosecuting attorney desired it issued. It was ruled in that case that under the evidence it was not a case for malicious prosecution without probable cause; but rather one of false imprisonment. It was also held, under the evidence as given hy the justice, that the warrant was illegally issued, and, finally, the court, in conclusion, discussing the provisions of section 2750, said: “This is a wise and mandatory provision of'the law, and in our opinion the necessity arising for the issuing of a warrant for the arrest of a defendant before the filing of the information by the prosecuting attorney ought to be evidenced either by an entry on the justice’s docket, or by indorsement on the writ, or by some other writing equally efficacious.”

It is unnecessary, with the disclosure of the petition in hand, to either express our assent or dissent from the views announced in that case, as to the provisions of section 2750 being mandatory; hut we will say, if the court means by what it said that the warrant would be illegal unless the satisfaction to the mind of the justice of the necessity arising for the issuance of the warrant, is “evidenced either by an entry on the justice’s docket or by indorsement on the writ or by some other writing equally efficacious,” we cannot assent to it. The office of justice of the peace is purely a creation of the statute, and the incumbent of such office is only authorized to perform those duties provided by it and is not required to do anything in respect to the discharge of his .duties as such justice, except such as are provided by law. A justice of the peace is not required to make any entry in his docket evidencing the necessity arising for the issuance of the warrant under the provisions of the section heretofore referred to, nor is he required to indorse such evidence upon the writ or to execute any writing evidencing such fact. It follows logically, if the statute does not require those things to he done, that the doing of them, upon an investigation as to the existence of the necessity provided for the issuing of the warrant, would not constitute evidence of the existence of such necessity.

By this proceeding it is sought to prohibit the justice of the peace and the constable to whom the warrant was addressed by the justiec, and the complainant, William Mathews, from further proceeding with the criminal charge inaugurated by complainant and to prevent them from taking any further action in respect to such proceeding.

The insistence of relators is so earnest that the preliminary rule issued in this canse should be made absolute, and the questions involved are so ably presented by counsel representing them, that it necessitates a "brief review of the subject of the writ of prohibition, the office it performs and the principles upon which it may justly be invoked. This subject has frequently been in judgment before this court, and the announcement of the rules and principles applicable to the issuance of this extraordinary writ has been uniform ■and harmonious from the case of Wilson v. Berkstresser, 45 Mo. 283, down to the recent case of State ex rel. v. Sale, 188 Mo. 493. As the subject now under review ■deals principally with the question of jurisdiction, it is well to first inquire what is meant by the term jurisdiction. In 17 Am. and Eng. Ency. Law (2 Ed.), 1041, it is said: “ Of the various definitions of jurisdiction per"haps the most satisfactory is as follows: Jurisdiction is authority to hear and determine a cause. Since jurisdiction is the power to hear and determine, it does not, ■as will be pointed out later, depend either upon the ■regularity of the exercise of that power or upon the rightfulness of the decision made.”

In State ex rel. v. Withrow, 108 Mo. 1, the writ of ■prohibition was denied. Gantt, J., spealdng for this ■court, after fully reviewing the proposition involved in that case, correctly and very tersely thus defined juris■diction: “It is this very right to hear, determine and ■decide, whether rightfully or wrongfully, that we denominate jurisdiction.” In Wilson v. Berkstresser, supra, it was ruled: “If the court, whose action is complained of, acts within its jurisdiction, but simply commits an error, the writ will not lie. It is not to be confounded with a writ of error or of certiorari, and must not be permitted to take their place.” In State ex rel. v. Railroad, 100 Mo. 59, Barclay, J., speaking for this •court, in discussing the subject of a writ of prohibition, thus stated the law: “Whether the particular facts on which the court proceeds are, or are not, sufficient to justify its exercise of jurisdiction, is a question of law,, the solution of which either way cannot impair the court’s right to apply its judicial power in the premises according to its view of the law and of the facts before-it. For instance, where a court has jurisdiction to render judgments, in ordinary civil causes, it would be-manifestly improper to issue á writ of prohibition against it on an application alleging that it was about to pronounce such a judgment on a petition which did. not state a cause of action, but which the trial court-had held sufficient, or because the latter had ruled erroneously that the plaintiff had a legal capacity to maintain the action. A mistaken- exercise of a jurisdiction, with which the court is, by law, invested does not furnish a sufficient basis for prohibition. Such mistake-may be reviewed as other errors; for example, by appeal, but not by a proceeding like this.” Citing Mastin v. Sloan, 98 Mo. 252. In State ex rel. v. Scarritt, 128 Mo. 331, it was again announced by this court: “The writ of prohibition may be invoked to check the use of judicial power when sought to be exerted beyond the lines which the law has marked as the limits-for the operation of the power. It may be applied to prevent action by a court in excess of its legitimate-authority in a proceeding whose subject-matter falls within the general cognizance of the court, as well as to stay an assumption of power over causes which by their nature are not confided by the law to the court’s consideration. But it should not be issued merely to-correct some judicial error in ruling on a subject committed to the judgment of the court against which the writ is sought. Still less may it be applied to anticipate a ruling upon a question properly within the authority of the court to decide. . The, writ cannot rightly be employed to compel a judicial officer, having full jurisdiction over the parties and a cause, to steer his official course by the judgment of some other judge, or to substitute the opinion of another court for his own dealing with topics committed by the law to his decision. ” Citing In re N. Y., etc., Steamship Co. (1895), 155 U. S. 523. In that same case the distinction between want of jurisdiction and the mere omission to state a cause of action in the case where jurisdiction exists, was plainly marked, and it was finally ruled that the remedy of prohibition cannot be called into play where the court, has jurisdiction, merely on the ground that the complaint or petition is defective, even in some substantial particular.

In State ex rel. v. Elkin, 130 Mo. 90, this court, in defining the- purpose and office of the writ of prohibition, announced the rule thus: ‘ ‘ The writ of prohibition is applicable whenever judicial functions are assumed which do not rightfully belong to the person or court assuming to exercise those functions..... The writ is as available to keep a court within the limits of its power in a particular proceeding as it is to prevent the exercise of jurisdiction over a cause not given by the law to its consideration. ’ ’ And in that same case it was clearly pointed out that the cases which the writ of prohibition was specially designed to reach were those in which the court assumed authority to pass judgment upon a subject not committed by law to the decision of the tribunal so assuming to act.

In Railroad v. Wear, 135 Mo. l. c. 256, the court, in announcing the rule applicable to1 the subject now in hand, used this language: “Where a court or judge assumes to exercise a judicial power not granted by law, it matters not (so far as concerns the right to a prohibition) whether the exhibition of power occurs in a case which the court is not authorized to entertain at all, or is merely an excessive or unauthorized applica-. tion of judicial force in a cause otherwise properly cognizable by the court or judge in question. [State ex rel. v. Walls (1892), 113 Mo. 42 (20 S. W. 883); In re Holmes (1894), 1 Q. B. (1895) 174.] Prohibition, however, will not ordinarily be granted where the usual modes of review by appeal or writ of error furnish an adequate and efficient remedy for the correction of an injury resulting from the unauthorized exercise of judicial power.” In State ex rel. v. Zachritz, 166 Mo. 307, this court was asked to interpose its writ of prohibition. The proceeding sought to be prohibited was one instituted by the Attorney-General in the nature of an equitable action to cancel certain licenses issued to relators, and in the meantime restrain them from operating their business under such licenses. The writ was denied, and one of the principal questions involved was as to the right of the Attorney-General to maintain the action. Brace, J., speaking for this court, after reviewing all the authorities pertinent to the propositions involved, said: “Moreover, whether the State can maintain the action is a question to be raised and determined in the court where the case is pending; it does not go to the power or jurisdiction of the court, and its decision here could not furnish a basis for prohibition. ’ ’ In support of this clear and terse announcement of the law as applicable to that case, nearly all of the cases heretofore referred to, announcing the rules in respect to the issuance of writs of prohibition, were . cited approvingly.

The law upon this subject is nowhere better or more clearly stated than in the case of Schubach v. McDonald, 179 Mo. 163. Marshall, J., in discussing the question of jurisdiction involved in that proceeding, after an exhaustive review of the subject before him, thus announced his conclusion upon the subject of jurisdiction. He said: “The matter, therefore, compresses itself into the question whether or not a basic subject-matter, over which a court of equity has jurisdiction, was presented to the circuit court for adjudication by the injunction suits. That is, whether a matter was presented which that court has power to deal with, and not whether such a matter was inartificially or defectively presented. In other words, the question is one of juris ■diction and not of pleading, for if the court had jurisdiction over the subject-matter, it had the power to decide whether the pleadings were or were not properly drawn, and also to decide whether or not the plaintiff was entitled to the relief sought. If a court has the power to ■act, its jurisdiction is in no wise impaired by the consideration whether it acted in accordance with the law ■or erroneously. Given the jurisdiction, all else is a mere matter of error, to be corrected on appeal. Or, further illustrated, if the court has jurisdiction over the subject-matter, it has the power to decide whether the petition does or does not state a cause of action, and the mere failure of a petition to state a cause of action or the defective statement of a good cause of action, in no way affects the jurisdiction of the court.” [Citing State ex rel. v. Scarritt, 128 Mo. l. c. 339-340.]

Counsel for relators particularly direct our atten-tion to the recent cases of State ex rel. v. Sale, 188 Mo. 493, and State ex rel. v. Eby, 170 Mo. 497. These cases in no way conflict with those heretofore cited, nor do they announce any different rule as applicable to this ■subject, but on the other hand they follow the unbroken line of expression by this court repeatedly and uniformly announcing the law upon this subject. In the Sale ■case the proceeding sought to be prohibited was one to disbar an attorney at law of the city of St. Louis. As was said by the court in that case, the petition in that disbarment proceeding was not addressed to the .general jurisdiction over attorneys at law practicing at the bar, but was founded on a particular statute without which the court has no authority to take the particular action therein prescribed within which alone it can .not render the particular judgment therein directed, hence it was held that, while the court had general jurisdiction over attorneys at law practicing at its bar, yet this being a proceeding under a particular statute in pursuance of which it could only render a particular judgment and finding from the disclosures in the petition, the court had no authority to render that particular judgment, and the extraordinary writ of prohibition was properly awarded. Valliant, J., in speaking for the court upon the question of jurisdiction, correctly and clearly announces the principles applicable to the extraordinary writ of prohibition. He said: “The fact that it would be error for the court to render a cer« tain judgment which the relator fears it is about to render is not in itself a sufficient reason for the issuance of such a writ. The presumption is that the court will not render a wrong judgment in a case of which.it has jurisdiction, and that it will not render any judgment at all except a judgment of dismissal in a case of which it has no jurisdiction. Ordinarily, therefore, even when the petition in the circuit court states no case within its jurisdiction, until the court takes some action indicating a purpose to entertain jurisdiction, a writ of prohibition will not issue, because the assumption must be indulged that when the case comes up for action the circuit court will dispose of it on the ground that it has no jurisdiction. And it is not every ease in which the court erroneously decides that it has jurisdiction that calls for a writ of prohibition. The writ of prohibition, in spite of the frequent use to which it has in late years been put, is still an extraordinary writ and issues only when sound judicial discretion commends it; in that view it is not a writ of right. On the other hand, whilst the main office of the writ is to keep the court to which it is addressed within the bounds of its jurisdiction, yet, in the exercise of the discretion above referred to, the writ is sometimes used to keep a court from doing what it has no lawful authority to do in a case the general nature' of which is within its jurisdiction.” The same may be said of the Eby case. In that case the prosecuting attorney filed twelve hundred and three informations against the relator charging violation of the act approved May 14, 1899', creating the office of Inspector of Beer and Malt Liquors of the State and providing for the inspection of beer and malt manufactured and sold in this State. Subsequent to a decision by this court holding said beer inspection act valid, there was an act of the General Assembly, approved on April 15, 1901, authorizing the compromise and settlement of all demands for inspection fees for the State, arising prior to March 19,1901, under the act approved May 14,1899. Sherwood, J.,. speaking for the court upon the questions presented in that case, said: “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 places himself on this record as intending to try relators on the very charges which the act, on compliance: with its terms, says shall be barred. 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.” ■ '

It is clear that the conclusions announced in the Eby case in no way invade the underlying principles' applicable to the issuance of the writ of prohibition as has been so clearly and uniformly announced by this court in the cases herein cited. From these cases may be deduced the following principles and rules applicable to the issuance of writs of prohibition:

1. To authorize a party litigant to invoke the aid of a writ of prohibition it must appear, in the proceeding sought to he prohibited, either that the court or judge in such proceeding was assuming to exercise and apply judicial power not granted by law or in a proceeding properly within its jurisdiction the court assumes to apply judicial force in excess of its power and authority so to do.

2. That if the court has jurisdiction of the class of cases to which the proceeding sought to he prohibited belongs, and acquires jurisdiction of the subject-matter, the mere fact of defects in the petition or complaint by which the proceeding was inaugurated, will not authorize the issuance of a writ of prohibition.

3. That the courts will not permit writs of prohibition to usurp the place of appeals, writs of error or <certiorari.

It is clear, applying these principles to this proceeding, that unless the remaining grounds urged by relators authorize it, they are not entitled to invoke the aid of this extraordinary writ.

This leads us to the consideration of the remaining propositions involved in this proceeding. The vital questions upon which the insistence of relators are predicated, that the preliminary rule in this cause should he made absolute, may thus be briefly stated:

1st. That the relators were members of the metropolitan police force of the city of St. Louis, and as such at the time the unlawful acts are alleged to have been committed by them, they had the same power in the county of St. Louis as they were authorized to exercise in the city, and therefore vested with authority to make arrests for the commission of criminal offenses in the said county of St. Louis and that the acts charged to have been done were in pursuance of the discharge of their duties as police officers and within their proper .jurisdiction; hence, they were violating no law and the preliminary rule should be made absolute • upon this ground.

2nd. If they were not authorized to make the ar rests in St. Lonis county, and do the acts with which they were charged in the complaint, in the proceeding before the justice of the peace, as police officers, then they were authorized under the facts disclosed by the petition to do such acts as private citizens.

3rd. That the allegations in the petition are admitted by the interposition of the demurrer filed in this cause, and that it being alleged in the petition that “the only object and purpose of said pretended criminal charge before said justice of the peace against.the relators and the sole purpose of the prosecution thereof, are to hinder, impede and postpone relators in the performance of their duties as policemen and as officers and citizens of the State and to protect from arrest persons engaged on said Delmar race track in violating the said act of the General Assembly of the State of Missouri, approved March 21, 1905,” is sufficient to warrant this court in issuing its extraordinary writ.

Upon the first proposition relators contend that under the proviso of section 14 of the Scheme and Charter adopted in pursuance of the Constitution of 1875, section 20, article 9, the metropolitan police of the city of St. Louis were vested with the same power and authority in the county of St. Louis as they were in the city, and that this power so vested is now in force under the laws of this State. After a careful consideration of this proposition we- are unable to give our assent to this contention. Section 14 of the Scheme and Charter above referred to, after stating that the costs of maintaining the metropolitan police shall he paid by the city of St. Louis, contains this proviso: “Provided, however, that the metropolitan police of the city of St. Louis shall have the same power and jurisdiction in the county of St. Louis, as constituted by this Scheme, as now provided by law: Provided, that upon a petition of the county court of St. Louis county, the hoard of police commissioners shall appoint and equip not more than twenty policemen, as provided in the act approved March. 13, 1867, for duty in said county. The cost of equipping and maintaining said police shall be paid by the county as herein established.” It is manifest that section 20, article 9, of the Constitution of 1875, as applicable to the subject of the Scheme and Charter of the city of St. Louis and St. Louis county, simply contemplated the vesting of power in the people to elect the freeholders to propose a scheme for the enlargement and definition of the boundaries of the city, the reorganization of the government of the county, the adjustment of the relations between the city thus enlarged and residue of St. Louis county. In other words, the separation of the government of St. Louis city and county and making them distinct and separate municipalities. The powers of the freeholders elected in pursuance of the provisions of the Constitution were simply to perform the duties and propose a scheme in harmony with the Constitution and laws of this State, accomplishing the work as contemplated by the Constitution which vested them with such power. It is clear that numerous sections of the Scheme and Charter proposed by the freeholders, contemplated by the Constitution, which were in harmony with the Constitution and laws of this State, were operative and valid and remained so as long as they were not in conflict with any of the general laws or the Constitution of this State. On the other hand, it is equally clear that if subsequent to the adoption of such Scheme and Charter there should arise a conflict between its provisions and any general law subsequently enacted by the General Assembly or the Constitution of the State, the provisions of the Scheme and Charter so in conflict would become inoperative and of no force or validity. In other words, if there is a conflict between the Scheme and Charter and the general law or the Constitution, the provisions of the Scheme and Charter must give way to the provisions of the law and Constitution of this State.

The metropolitan police system now in force, ap plieable to the city of St. Louis, is a creature of the statute. By an act of the G-eneral Assembly approved March 27, 1861, the present system was inaugurated. This act created a board of police commissioners and expressly defined their powers. This act was amended by the General Assembly at its session in 1867, by an act approved March 13, 1867. The General Assembly in 1899, by an act approved March 15, 1899, while continuing in force many of the provisions of the act of-1861 and acts supplementary thereto, substitutes an entirely new act and provides by the first section, “That an act entitled ‘An act creating a board of police commissioners and authorizing the appointment of a police force for the city of St. Louis,’ approved March 27th, 1861, and all acts supplementary to and amendatory thereof be and the same are hereby repealed. ” This act expressly defines the duties and powers of the board of police commissioners created by it. The validity of this act was assailed in State ex rel. v. Mason, 153 Mo. 23. Responding to that assault made upon this act, this court, speaking through Gantt, J., said: “The fundamental principle underlying the acts of 1861 and 1899, creating boards of police commissioners for the city of St. Louis, are the same, and the.constitutionality of such legislation has stood the test of the most critical judicial examination and review. Laws like these and those of other States providing a metropolitan police system for large cities, are based upon the elementary proposition that the protection of life, liberty and property and the preservation of the public peace and order in every part, division and sub-division of the State, is a govermental duty which devolves upon the State and not upon its municipalities any farther than the State in its sovereignty may see fit to impose upon or delegate it to the municipalities.” As was said in that case, the duty of providing a metropolitan police system for large cities for the protection of life, liberty and property and the preservation of the public peace and order in every part, division and sub-division of the State, is imposed upon the State and not upon its municipalities any farther than the State in its sovereignty may see fit to impose upon or delegate it to the municipalities ; hence to ascertain the duties and powers of the officers created under this police system, applicable to the city of St. Louis, created by the State through its General Assembly, we must look to the original source of such system where the powers and duties of those who are commanded by the law to put it in operation, are expressly defined.

The police system of the city of St. Louis being a subject of State legislation, and the General Assembly having created such system, as well as the officers connected with it, and having expressly defined the powers and duties of the officers, it was not within the power of the framers of the Scheme and Charter, contemplated by the Constitution, to vest such officers with powers inconsistent with and not in harmony with the general laws of the State creating such police system. The provisions of section 5, Laws 1861, page 448, so far as they are applicable to the proposition now in hand, provides that: “The duties of the board of police hereby created shall be as follows: They shall at all times of the day and night within the boundaries of the city of St. Louis, as well on water as on land, preserve the public peace, prevent crime, and arrest offenders...... In case they shall have reason to believe that any person within said city intends to commit any breach of the peace, or violation of law or order beyond the city limits, any person charged with the commission of crime in the city of St. Louis, and against whom criminal process shall have issued, may be arrested upon the same in any part of this State by the police force created or authorized by this act.” It is apparent that these provisions limit the duty to arrest offenders as well as the power to do so. In the first instance they are limited in arresting offenders to the boundaries of the city of St. Louis. Secondly, it is pointed out under what circumstances they may arrest persons within the' city, where there is reason to believe that such persons found within the city intend to commit any' breach of the peace or violation of law or order, beyond the city limits. Thirdly, where the offense is committed in the city of St. Louis and criminal process has issued against such offender, the arrest may he made upon such process by the police force of such city in any part of the State. Under the provisions of the Scheme and Charter proposed by the thirteen freeholders, by section two, it is provided: “The city of St. Louis, as described in the preceding section, and the residue of St. Louis county, as said county is now constituted by law,, are hereby declared to he distinct and separate municipalities. ’ ’ Confronted with these provisions it will certainly not he seriously urged that under the provisions of the act of 1861 the police officers of the city of St. Louis were authorized to make arrests in St. Louis county, for offenses committed in that county or to perform any other duty in their official capacity in said county, not expressly authorized by the act which created the offices and expressly defined the duties of the. incumbents thereof. The express provision in the act defining the duties of the officers must be treated as excluding any authority to perform other functions not embraced in the act. In substance the statute expressly providing the duties to he performed by the officers under the law inaugurating the police system in the city of St. Louis, was a command of the law-making power to the officers, " ‘ ‘ This law created the offices you are filling, and you must confine yourselves to the performance of the duties expressly designated by it.”. We can conceive of no case where the familiar maxim, “expressio unius, exelusio alterius,” can be more appropriately applied.

The act of 1861 was amended by an act of March 13,1867, and section 3 of that amendatory act, in refer ence to the board of police commissioners of the city of St. Louis, provides that “the board, whenever and for so long a time as may be necessary, is further authorized to appoint, mount and equip not more than twenty policemen for duty in the outskirts and open portions of the city and elsewhere in the city and county of St. Louis.” The act of 1861 and the amendatory act of 1867, were in force at the date of the adoption of the Scheme and Charter by which the county of St. Louis and the city of St. Louis were separated and declared to be separate and independent municipalities. The provisions of section 14 of said Scheme and Charter, which learned counsel for relators insist is still in force, was simply an effort on the part of the framers of the Scheme and Charter to harmonize the provisions of the Scheme and Charter with the existing provisions of the law. This is clearly indicated by the terms employed in the section where it is provided “that the metropolitan police of the city of St. Louis shall have the same power and jurisdiction in the county of St. Louis as constituted by this Scheme, as now provided by law.” Then follows the provision referring to section three of the amendatory act of 1867. It is apparent from the very terms of section 14 that the framers of the Scheme and Charter realized that they had nothing to do with the creation of the metropolitan police system of the city of St. Louis, and that the duties and powers of the officers, provided for by the law creating the system, having been expressly defined by an act of the G-eneral Assembly, they were without authority to prescribe the duties and powers of such officers, unless such authority had some existing law upon which to predicate it. It was never contemplated by section 14 of the Scheme and Charter that the provisions of said section applicable to the provisions of the officers of the St. Louis police, should continue in force regardless of the fact that the law which conferred such powers should be repealed, leaving no basis upon which the provisions of said section conld stand. The lawmaking power of the State created this system of police for the city of St. Lonis, and having defined the duties and the powers of the officers of such system, the right to perform other duties and exercise additional power outside of the limits of the territory for which the system was created, must he predicated, not upon a mere provision of a Scheme and Charter of a municipality, but upon expressions from the source from which the metropolitan police system was brought into existence. The correctness of this conclusion is emphasized and the intention of the Legislature clearly indicated by the emphatic terms employed in section 1 of the original act of 1861 in which it is stated that “no ordinance heretofore passed, or that may hereafter be passed by the common council of St. Louis shall in any manner conflict or interfere with the powers or the exercise of the powers of the board of police commissioners of the city of St. Louis, as hereinafter created, nor shall the said city or any officer or agent of the corporation of said city or the mayor thereof in any manner impede, obstruct, hinder, or interfere with the said- board of police or any officer, or agent, or servant thereof or thereunder.”

The act of 1861, as well as the amendatory act of 1867, and all other supplementary acts, were repealed by the act of 1899, heretofore referred to; this left the provisions of section 14 of the Scheme and Charter, so far as it was applicable to the exercise of jurisdiction by the officers of the metropolitan police of the city, without any foundation upon which to stand, unless it can be found in some of the provisions of the act of 1899. Section 5 of the act of 1899 is substantially a reenactment of section 5 of the original act of 1861 — embracing the same limitations and exceptions to such liniitations, as are contained in the act of 1861. The purpose and intent of the Legislature, in the act of 1899, is most clearly disclosed in the provisions of section 18, Laws 1899, page 59. It provides: ‘ ‘ The boards, whenever and for so long a time as may be necessary,, is [are] authorized, out of the force hereinbefore provided for, to appoint, mount and equip as many policemen as they may deem necessary for duty in the parks,, outskirts and such other portions of the said cities as-the board may deem necessary.” It will be observed that this section covers substantially the same subject as was embraced in the provisions of section 3 of theamendatory act of 1867, herein quoted, and which was referred to in section 14 of the Scheme and Charter, heretofore indicated — except, it fails and omits to embrace any part of the county of St. Louis as was done-in the act of 1867. The difference in those sections,.' though slight, becomes significant and will be readily noted. Section 3 of the act of 1867 provides that the-board should appoint and equip a certain number of policemen for duty in the outskirts and open portions of' the city, and elsewhere in the city and county of St. Louis. Section 18 of the act of 1899 also provides for-the appointment of policemen for duty in the parks and outskirts, but limits and confines the performance of' such duty within the limits of the cities embraced in the-act.

We have carefully considered each, and every section of the law of 1899, enacted by the General Assembly of this State, creating the metropolitan police system of the city of St. Louis, and we are unable to find', any provision upon which the relators can predicate-their authority for undertaking to exercise jurisdiction in the county of St. Louis. But on the other hand the provisions of- the act of 1899. clearly indicate the purpose and intention of the Legislature to divest the officers of the police system of the city of St. Louis of all authority to exercise jurisdiction in the county of St.. Louis; that is, all authority in respect to arresting offenders in the county for the commission of offenses-committed in said county.

Counsel for relators, in support of their insistence- that the provisions of section 14 of the Scheme and Charter are continued in force, invoke the familiar rule that repeals by implication are not favored in the law. This rule, technically speaking, applies only to enactments of laws by the same legislative body, and it is •extremely unusual for the General Assembly of the State to expressly repeal a charter provision of a municipality. The law-making power of the State covers a broader field and proceeds to enact such general laws upon subjects about which it has the right to legislate,- and the municipalities must take notice of such legislation and whenever their charter provisions conflict with such general laws, it is not essential that the Legislature should repeal such charter provisions or in any way give expression to its disapproval of them; but it is simply the plain duty of the municipalities to see that their charter provisions are in harmony with the Constitution and laws of this State, otherwise they are inoperative and of no force or vitality.

It may be said that these two local governments, situated as they are, created the necessity for a law extending the jurisdiction of the police system of the city of St. Louis to the county of St. Louis. This by no means can warrant or furnish a justification to- this ■court, in order to meet a.condition complained of, to treat a law as existing, when in fact none exists.

While the metropolitan police system was created by the State through its General Assembly, it was created for the city. The city and county of St. Louis, by the express provisions of the Scheme and Charter, were made separate, distinct and independent municipalities, and unless we are to absolutely ignore all the principles ■of local self-government, which has ever been the pride of this great Commonwealth, it must be held under the law now in force, that as police officers, relators were without authority to arrest offenders in St. Louis -county for offenses committed in such county.

Upon the second proposition, that relators were at the place in St. Louis county where the unlawful acts are charged to have been committed, as citizens, and as such had the right to do what was done, and therefore are not guilty of any violation of the law, it is sufficient to say that these are matters of defense upon the trial of the charge preferred, and this court, upon this application for a writ of prohibition, is not warranted in determining the guilt or innocence of the relators, and the allegations of that nature furnish no basis for the issuance of the writ.

This brings us to the consideration of the only remaining proposition involved in the record before us. This proposition is embraced in the contention of relators that the allegation in the petition, which is admitted by the demurrer, that “the only object and purpose of said pretended criminal charge before said justice of the peace against the relators and the sole purpose of the prosecution thereof are to hinder, impede and obstruct the relators in the performance of their duty as policemen, and as officers and.citizens of the State and to protect from arrest persons engaged upon said Delmar race track in violating the said act of the General Assembly of the State of Missouri, approved March 21st, 1905,” fully warrants this court in issuing its extraordinary writ of prohibition. We are unable to give our assent to this contention of relators. It will be observed that this allegation in the petition upon which relators base this contention is, “that the only object1 and purpose of said pretended criminal charge and the sole purpose of the prosecution thereof, are to hinder, impede, obstruct,” etc., followed by the allegations heretofore referred to. We are unable to conceive what the object and purpose of a prosecution has to do with the jurisdiction acquired by the justice. It is immaterial, so far as conferring jurisdiction upon the justice,, what the objects and purposes of the prosecution were. William Mathews was the complainant in said cause before the justice and filed the charge against 'the relators and must be treated, so far as the disclosure of the petition are concerned, as the prosecuting witness; hence the allegations upon which this contention is predicated are directed solely to respondent Mathews. He made the charge and the petition avers the improper object and purpose in making it. The said allegations apply to the prosecution of the charge, and Mathews is the complainant and prosecuting witness; hence those allegations are exclusively directed to Mathews. There is an entire absence of any charge in the petition that the justice of the peace acquired and assumed jurisdiction of said cause for the objects and purposes attributed to Mathews in making the charge, and in his prosecution of it, or that the justice had any knowledge of such objects and purposes. The objects and purposes of Mathews or any one else in making a charge and prosecuting it against relators for the commission of a misdemeanor, absolutely have nothing to do with the jurisdiction acquired by the justice, and can in no way affect such jurisdiction. Even though the justice entertained the purposes attributed-to Mathews, while it would be reprehensible in him as an officer, and would furnish a sufficient reason to the relators to invoke the aid of the provisions of the statute providing for changes of venue, it does not go to the jurisdiction of the justice and furnish a basis for the issuance of the writ of prohibition.

If we are to announce the rule that the objects and improper purposes of complaining witnesses in the courts of this State, and the judges of such courts, are to be considered as affecting the jurisdiction of the tribunals in which complainants are lodged and made . the basis of issuing the extraordinary writ of prohibition, then we confess that prosecution in criminal as well as civil cases will be subjected to many delays (at least until a hearing can be had upon the preliminary rule) by applications for writ of that character, based upon' allegations of such objects and purposes of the trial' ■court, and the administration of justice unnecessarily retarded.

We see no reason for granting the relief sought by relators in this proceeding. The fact that they may be entirely innocent of any infraction of the law can furnish no legal reason for the issuance of this writ, nor does the fact that it greatly inconveniences them to make their defense through the courts, do so. True .judicial history affords ample proof of many innocent, upright and worthy citizens being arraigned.before the courts of this country, charged with much higher grades •of crime than are relators; yet the courts had jurisdiction of such charges and proceeded in the usual and ■ordinary way provided by law to try and determine such charges, and ultimately, sometimes in the trial ■court, at other times in the courts of last resort, their innocence is made to appear and they go acquitted; yet we are without precedent for any court under our system of procedure, to issue its extraordinary writ prohibiting such formal trial of persons, even though, they he innocent of the grave charges perferred against them. '

The law announced by the courts is not merely for •a day, and new principles should never be created or ■doubtful ones declared to meet the seeming demands and conditions surrounding any particular case. While there may be instances in which the law is inadequate to promptly meet and punish every wrong committed, this however does not authorize the courts to remedy such defects by judicial legislation, and at last, the safety of the people, as well as the. protection of their lives, liberty and property, must depend upon the full recognition by the courts of the country of "the fundamental principles of government, as well as of law, and a strict adherence to such principles, and the fearless application of them in the administration of justice.

While it may be said that relators are police officers and should be granted the relief sought by this proceeding, yet it must be remembered tbat this court, in issuing its extraordinary writ, must be able to point to some of the principles herein indicated, applicable to writs of that character, as abasis for its action. Under our system of government it has ever beep the boast of American jurisprudence that “no man is above the law, ’ ’ and we know of no garb that will exempt the individual from obedience to its provisions.

We have thus indicated our views upon the propositions presented in the record, which results in the conclusion that the demurrer presented by respondents, to the petition of relators, should be sustained and it is so ordered.

Brace, G. J., Gantt, Burgess and Lamm, JJ., concur; Marshall and Valliant, JJ., dissent.