In re Webers

BECKER, J. — This is an original proceeding for - a writ of habeas corpus. "When the matter was first before us 'this court entertained a doubt as to its jurisdiction because a constitutional question (and arising on the return) was involved on the record and in view of the proceedings had in Ex parte Nelson, 251 Mo. 63, 157 S. W. 794, transferred the case to the supreme court for its determination. [In re Webers, 200 Mo. App. 29, 197 S. W. 850.] However the supreme court remanded the record to this court holding that while it had “sub silentio” entertained jurisdiction in the Nelson case, no question had been raised in that case as'to the supreme court acquiring jurisdiction by the transfer of the cause from the Kansas City Court of Appeals, whereas, in the present case the question was directly raised, and that while section 6 of the Amendments of 1884 of the Constitution of the State of Missouri permits and requires certain cases to be certified, and that while under section 3 thereof section 3938, Revised Statutes of Missouri, 1909, had been enacted by the Legislature providing that “in the .event of any case being sent improperly on appeal or writ of error from a lower court to either of -the courts of appeal, when the same should have been sent to the supreme court,” it shall be transferred to the supreme court, yet such section specifically limits this provision to cases on appeal or writ of error and withholds the power to transfer in any other cases. In other words the supreme court in this case when before it, distinctly ruled that courts of appeal are without authority to transfer writs of habeas corpus sued out under the Habeas Corpus Act upon petition to either the courts of appeal or to any one of the judges thereof, even though it be found that a constitutional question is involved. [See In re Webers, - Mo. -, 205 S. W. 620.] [372] We have heretofore held that the constitutionality of section 3459, Revised Statutes of Missouri, 1909, and amendments thereto, are involved in this case (In re Webers, 200 Mo. App. 29, 197 S. W. 850), and this court being without jurisdiction where a constitutional question is involved (In re Webers, - Mo. -, 205 S. W. 620) it follows that the writ heretofore issued herein must be and the same is hereby quashed and the petitioner remanded to the custody of the respondents herein. Reynolds, P. J., and Allen, J., concur.