Opinion
No. 42820.
July 14, 1952.
APPEAL FROM THE CIRCUIT COURT OF LINN COUNTY, G. DERK GREEN, J.
H.K. West, Brookfield, for appellants.
J. E. Taylor, Atty. Gen., Gilbert Lamb, Asst. Atty. Gen., for respondent.
Mandamus. Upon relator's petition, the circuit court issued its alternative writ against respondent Walter Allen, in his official capacity as the duly elected, qualified and acting prosecuting attorney of Linn County. Respondent filed his return. After a trial, the circuit court quashed the alternative writ and refused a peremptory writ. Relator's new trial motion being overruled, relator appealed to this court.
Relator stands separately charged in the Circuit Court of Linn County with two offenses; first, a charge of assault with intent to kill with malice aforethought; and second, a charge of carnal knowledge. He is awaiting trial on those charges. Relator's petition sought to compel respondent prosecuting attorney, as such and in his official capacity, to file, in the carnal knowledge case, a petition charging relator as a criminal sexual psychopath under the Criminal Sexual Psychopath Act. Secs. 202.700 to 202.770, RSMo 1949, V.A.M.S. And see State ex rel. Sweezer v. Green, 360 Mo. 1249, 232 S.W.2d 897. Attached to relator's petition for mandamus were certain exhibits (copies of which, it was alleged, had been in respondent's possession for some time) purporting to call to respondent's attention, officially and as prosecuting attorney, facts which relator alleged classified relator as a criminal sexual psychopath under the Act. Relator's theory in this court is that the failure and refusal of respondent, as prosecuting attorney, to so officially act and file such petition is capricious and arbitrary and constitutes an abuse of the discretion vested by law in respondent as prosecuting attorney.
Before we may consider relator's appeal upon the merits, we must determine our jurisdiction. Relator suggests that this court has jurisdiction under two state constitutional provisions. He first relies upon Sec. 14, Art. I, V.A.M.S. providing that "the courts of justice shall be open to every person * * * and that right and justice shall be administered without sale, denial or delay." Neither relator's petition for mandamus nor his new trial motion raised, or attempted to raise, any constitutional question whatsoever. He had ample opportunity, and it was his duty, to raise below any constitutional questions he desired this court to consider. He did not do so and he cannot, as he contends, now inject such an issue in this appeal. "1. He must raise the constitutional question at his first available opportunity; 2. he must designate specifically the constitutional provision claimed to have been violated, such as by explicit reference to the Article and Section or by quotation of the provision itself; 3. he must state the facts showing such violation; 4. he must preserve the constitutional question throughout for appellate review." City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, 380.
Relator next contends that jurisdiction is here in that Sec. 3, Art. V, V.A.M.S. vests in this court appellate jurisdiction in all cases in which "any state officer as such is a party"; and that respondent prosecuting attorney, a party in his official capacity, is a "state officer." True, there has been delegated to respondent, a duly qualified and acting prosecuting attorney, some substantial part of the state's sovereign power, to be independently "exercised with some continuity and without control of a superior power other than the law." See State ex rel. Webb v. Pigg, 249 S.W.2d 435, decided by this court en banc, June 9, 1952. Yet that is not the determinative factor as to our jurisdiction under Sec. 3, Art. V.
In State ex rel. Rucker v. Hoffman, Judge, 313 Mo. 667, 288 S.W. 16, 17 (wherein it was held that a circuit judge was not a "state officer" under the constitutional provision prescribing appellate jurisdiction), we said that no officer is a "state officer" under such constitutional provision "unless his official duties and functions are co-extensive with the boundaries of the state." The ruling in the Hoffman case has since been followed in State ex rel. and to use of Gorman v. Offutt, Mo.Sup., 9 S.W.2d 595; Bank of Darlington v. Atwood, 325 Mo. 123, 27 S.W.2d 1029; Dietrich v. Brickey, 327 Mo. 189, 37 S.W.2d 428; and Fischbach Brewing Co. v. City of St. Louis, 337 Mo. 1044, 87 S.W.2d 648.
We again approve, and here apply, the rule applied in those decisions. Respondent prosecuting attorney's official duties and functions are not coextensive with Missouri's boundaries. His rights and duties (to exercise portions of the state's sovereign powers) are limited to Linn County, the county in which he was elected and which he is now serving. We hold that he is not a "state officer" within the purview of Sec. 3, Art. V.
Without jurisdiction, we have neither the right nor the power to rule relator's appeal upon the merits.
The cause is transferred to the Kansas City Court of Appeals.
VAN OSDOL and COIL, CC., concur.
The foregoing opinion by LOZIER, C., is adopted as the opinion of the court.
All concur.