Respondent's motion for rehearing invokes State ex rel. Buckner v. McElroy, 309 Mo. 595, 608, 274 S.W. 749, 751, which was not cited below in the Probate Court's memorandum, or in our opinion. It ruled Sec. 6, Art. VI, Const. Mo. 1875 vested in the county courts "jurisdiction to transact all county business", and specifically the sole authority to manage and pay the maintenance costs of specified public institutions for the protection, care and education of delinquent and dependent children, to the exclusion of a Board of Paroles composed of circuit judges, created by a statute. That was true then, but as pointed out in the principal opinion, county courts are not constitutional courts now, and Sec. 7, Art. VI, Const. [260] 1945 only gives them power to manage all county business as prescribed by law. They may be abolished altogether in certain counties. And the power to manage public institutions is quite a different thing from the power to adjudicate at insanity inquisitions. We think the case is not in point.
Another new point made in the motion is that under the Scheme and Charter of the City of St. Louis, adopted in 1876 pursuant to Sec. 20, Art. IX, Const. 1875, the Municipal Assembly took over the powers of the county court. And the question is asked: can those powers, as regards insanity inquisitions and commitments affecting the insane poor, be taken from the City by Senate Bill 284, supra. Respondent answers that question by saying the contrary was held by this court en banc in Lefman v. Schuler,317 Mo. 671, 296 S.W. 808.
In that case the sheriff of the city sought to assume the powers of the city jailer under a general statute, now Sec. 9195, R.S. 1939-Mo. R.S.A., providing the sheriff of each county shall have charge of *Page 673 the jail. The pertinent part of that identical statute had been in force at least since R.S. Mo. 1835, p. 335, sec. 2, long before the St. Louis Charter was adopted in 1876. But notwithstanding this general statute, special Acts were passed by the Legislature in 1841, 1851 and 1866, providing or permitting that a jailer should be in charge of the jail in St. Louis County. Such special Acts were valid in those days, and the Act of 1866 was not nullified by Sec. 53, Art. IV, Const. 1875 banning special and local laws in great part.
The 1866 Act was in force when the City and County of St. Louis were merged by the Charter of 1876, and the jailer was continued in charge of the jail in the City. By Laws Mo. 1877, p. 188 the Legislature recognized that fact, and provided the duties of the sheriff of the City should be the same as those of the sheriff of the County under the General and special laws then in force,except where inconsistent with the Charter. And Laws Mo. 1879, p. 39, provided all general and special laws applicable to sheriffs of the several counties of the State before the adoption of the Charter, should still apply to the sheriff of the City. This history was reviewed in the Lefman case, cited by respondent, and it held on a construction of the prior laws that the jailer had not been deprived of his duties; not that theycould not be taken away from him.
The third point in the motion for rehearing is this. Respondent complains that the probate court in this case ruled the power to hold insanity inquisitions and issue commitments thereunder isexecutive in nature and not judicial. And he insists he is entitled to a "categorical answer" whether that holding was correct. Our answer is that the power is now judicial and not executive. When the county court exercised that power under Sec. 36, Art. VI, Const. 1875, it was a constitutional court. The exercise of the power may deprive the subject of precious constitutional rights, liberty and the enjoyment of property, which cannot be done without due process of law. And it will not do to say in such a case that relief can be obtained afterward by habeas corpus. 32 C.J., p. 626, sec. 162; p. 627, sec. 164; p. 628, sec. 165; p. 680, sec. 349; 28 Am. Jur., p. 661, secs. 9, 10; p. 672, sec. 25; Hunt v. Searcy, 167 Mo. 158, 171-182, 67 S.W. 206, 210-214; Conway v. Robinson (Mo. Div. 1), 178 S.W. 154, 158(3); In re Conner's Estate, 254 Mo. 65, 76-80(2), 162 S.W. 252, 255(3); 49 L.R.A. 1108; State ex rel. Paxton v. Guinotte,257 Mo. 1, 11-12(2), 165 S.W. 718, 721, 51 L.R.A. (N.S.) 1191, Ann. Cas. 1915D, 658; Re Moynihan v. Hoctor, 332 Mo. 1022, 1034(6), 62 S.W.2d 410, 416(8), 91 A.L.R., 74.
For the reasons stated the motion for rehearing is overruled. *Page 674