State ex rel. Kelley v. Wooten

OPINION. NIXON, P. J. (after stating the facts). — It was unquestionably the purpose of the relator in suing out the writ of certiorari in this case, to have the documentary evidence, offered before the county court at the time the petition for a local option election was presented, brought up in the respondents’ return and reviewed by the trial court so as to thereby secure a retrial of the question whether or not Peirce City, at the time of the filing of such petition, -was a municipal corporation of more than twenty-five hundred inhabitants. This belief that the writ of certiorari can be used to accomplish any such purpose is a total misapprehension of the functions of such writ. The writ of certiorari only brings up the record, and only such matters as appear on the face thereof which go to the jurisdiction of the tribunal to which the writ is directed, can be reviewed by such writ. [Ward v. Board of Equalization, 135 Mo. 309; State ex rel. v. Madison County Court, 136 Mo. l. c. 326.] [236] The county court is of statutory origin, having neither common law nor equitable jurisdiction. No provision has been made for preserving evidence taken before it and making it a part of the record. Therefore, the evidence adduced before such court on the hearing of habeas corpus (or writ of certiorari), even if reviewable, is no part of the record proper, nor could it be made so in the absence of statutory enactment providing for so doing by bill of exceptions or otherwise; hence, such evidence is not the subject of review here. There is nothing for us to pass upon save the record proper. [State ex rel. v. Madison County Court, 136 Mo. l. c. 327; State ex rel. v. Walbridge, 62 Mo. App. 162; State ex rel. v. Bland, 168 Mo. l. c. 7; Hannibal & St. J. R. R. Co. v. State Board, 64 Mo. 308; State v. Common Council, 28 Wis. 271, 55 N. W. 118.] The record proper in this case, which we can only consider, consists of the petition presented to the county court for a special election and the orders of record made concerning such election, the notice of the local option election with proof of the publication of the same, and the abstract and certificate of the canvass of the votes cast showing the results of the election. At common law and in those States which have not departed materially therefrom (of which Missouri is one), the accepted doctrine is, that where a tribunal has jurisdiction, a writ of certiorari does not lie to correct mere errors in the exercise of rightful jurisdiction. [4 Ency. of Pl. and Prac., 98; State ex rel. v. Smith, 101 Mo. 174; Railroad v. State Board, 64 Mo. 294; State ex rel. v. Edwards, 104 Mo. 125; State ex rel. v. Shelton, 154 Mo. 670; State ex rel. v. Moniteau County Court, 45 Mo. App. 387.] To cite more cases in support of this principle is “wasteful and ridiculous excess.” As the law has given us no commission under the showing made in this case to set aside the orders of the county court of Lawrence county calling a special [237] election to vote upon the question of local option in said county, for the reasons herein stated the judgment of the'circuit court quashing the writ of certiorari and dismissing the petition of the relator is hereby affirmed. All concur.