Emanuel Bedard' was, on proper process, arrested upon a charge of felony and taken before the St. Louis court of criminal correction for preliminary examination, in June, 1891. On the twenty-sixth day of that month he filed an affidavit, supported by two persons, to the effect that James R. Claiborne, judge of said court, was so prejudicéd against relator that he could not have a fair and impartial trial before him and applied for the election of a special judge. This application being overruled, relator made another affidavit to the same effect, and asked to have the case sent to some justice of the peace in the city of St. Louis for hearing and determination. This also being overruled, the court, Judge Claiborne presiding, tried the case, and held relator to answer an indictment that might be preferred against him for the offense charged, and, upon his failure to enter into recognizance in the sum of $300, he was imprisoned in jail, upon a warrant of commitment issued from said court dated June 30, 1891, to await the action of the grand jury. Relator now seeks in this proceeding to be released from such imprisonment.
Two questions arise for decision herein : First. Did the relator have a legal right to a change of venue from the St. Louis court of criminal correction upon the filing of the affidavits above named % Second,. Is the writ of habeas corpus the proper remedy in a case of this character %
*621I. To answer the first question it becomes necessary to inquire into the character and constitution of the court of criminal correction. The powers and jurisdiction of that court and the judge thereof are prescribed by article 19 of the laws especially applicable to the city of St. Louis. R. S. 1889, p. 2152. Prom the provisions of that article it appears : First. That that court is a court of record. Second. The judge of that court is a conservator of the peace within the city of St. Louis, and in cases of felony he has and may exercise all the powers of an examining magistrate, but “all warrants and processes in such cases shall be issued under the hand of the clerk of said court with the official seal of said court affixed and all such examinations shall be conducted during the open session of said court.” Third. “Said court shall have exclusive original jurisdiction of all misdemeanors triable in the city of St. Louis, the punishment whereof is by fine or imprisonment in the county jail or both,” etc. Fourth. “ The proceedings of said court shall be governed by the laws regulating proceedings and practice in criminal cases, so far as the same may be applicable.”
Section 4303 of the criminal code provides that “the provisions of this code, applicable to the circuit court and the judges thereof, shall also be applicable to any other court of record exercising criminal jurisdiction, and the judges thereof, in all cases when no other or different provision is made by law for the government and control of such courts or judges.” . There being no provision, in the statute establishing the court of criminal correction, for a change of venue from that court on account of the prejudice of the judge, and it being a court of record, this section extends the provisions of the criminal code to it. Let us examine these provisions, then, and see whether Judge Claiborne should have ordered the election of a special judge or called in another regular judge to conduct the preliminary examination in the case.
*622Section 4174, Revised .Statutes, 1889, provides that, “ when any indictment or criminal prosecution shall be pending in any circuit or criminal court, the judge of said court shall be deemed incompetent to hear and try said cause * * * when the defendant shall make and file an affidavit supported by the affidavit of at least two reputable persons not of kin to or counsel for the defendant that the judge * * * will not afford him a fair trial.” Other sections of the statute then provide for the election of a special judge or the calling in of the j udge of another circuit to dispose of the case. The determination of the question here hinges upon the scope and meaning of the words “ criminal prosecution,” as used in section 4174, supra. We have no doubt they include a criminal information for a misdemeanor, but it is not so clear that they include a preliminary examination for a felony, and resort must, therefore, be had to constitutional provisions and statutes in pari materia.
The constitution of Missouri provides that ‘ ‘ in all criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel.” It will hardly be contended, we presume, that the legislature would have the right to pass a law prohibiting the accused from appearing and defending in person and by attorney in a preliminary examination on the ground that it was not “a criminal prosecution” within the meaning of this constitutional provision. A preliminary examination from its inception to its close is carried on in the name of the state, and its object is to detect crime and the criminal. In State v. Williams, 34 La. Ann. 1198, the supreme court of Louisiana says: “Under our system of criminal law, a prosecution has several phases or steps of proceeding ; the first being usually an affidavit or charge : next, a warrant of arrest and so on through the hands of the committing magistrate whose committal transfers the prosecution to the proper criminal court, where it undergoes the other phases of presentment, arraignment, trial and conviction or acquittal *623* * *. If the proceedings had before the committing magistrate are not a ‘prosecution ’ in the legal sense, where would be the authority for detaining the accused in legal custody, or what would be the legal value of the bond furnished by the accused for his appearance before the criminal court? It is elementary in our jurisprudence that such proceedings are the basis and primary inception of the prosecution, and that the order of the committing magistrate accepting the bond of the accused is a judicial act which is the basis of the judgment of the criminal court in case of a forfeiture of the bond.”
That the preliminary examination before the committing magistrate is a criminal prosecution is conceded, without argument, by this court, in the opinion of the majority of the court, and the dissenting opinion of Judge Ryland in the case of State v. McO’ Blenis, 24 Mo. 402. This identical question was involved in that case, and the opinions therein delivered are able, exhaustive and cogent in a marked degree. Mr. Wright, one of Missouri’s most distinguished advocates, concedes that a preliminary examination is a criminal prosecution, though the proposition he contended for would have been relieved of much difficulty, if he could have plausibly ' avoided making this concession. And Judge Ryland, whose dissenting opinion in the case, is unsurpassed in legal literature for its research and philosophic treatment of the questions discussed, says: “The words are, ‘in all criminal prosecutions the accused has the right to meet the witnesses against him face to face.’ Now if the words in question do require, as no one has yet denied, that the witness and the prisoner shall confront each other, and, if that was necessary to the constitutional validity of the testimony taken before the justice, it could not be dispensed with on the trial before the traverse jury, unless it could be shown that there was no criminal prosecution going on there. * * * The meaning on the contrary appears to be, *624that, whenever there is a prosecution and a witness, there the right of the prisoner to meet the witness face to face is given by the constitution * '* *. Passing by what seems to me to be the plain and obvious import of the language of the constitution, I can conceive of no possible reason why the draftsmen should not intend what their words would indicate. Is there any reason making it important that the witness and the accused should meet face to face at the examination before the magistrate, which would not apply with greater force on the trial before the petit jury? I can think of none.” We quote this language of this eminent jurist, though in a dissenting opinion, as being a correct exposition of the meaning of the words-under review; for he evidently stated what was conceded by court and counsel to be their meaning, this concession being in antagonism somewhat to the principle he sought to establish. He says “no one has denied” that the constitutional provision applied to a preliminary examination. And this is the general doctrine. 1 Chit. Cr. Law, 1; Anderson’s Law Dic., title “Prosecution;” Bouvier’s Law Dic., title “Prosecution.”
A preliminary examination is not only carried on in the name of the state to detect crime and the criminal, but the direct effect of it may be to deprive the accused of his liberty, and hence the dearest rights of the citizen are involved. Our legislature has guarded the rights of the people from unjust invasion by providing for a change of venue from a justice of the peace upon application of the accused supported by affidavit in preliminary examination cases. R. S. 1889, sec. 4346. So that, if the St. Louis court of criminal correction is exempt from the operation of all statutes on the subject of change of venue, it is the only one in the state that is so exempt, and being so exempt the statute authorizing it to hear preliminary examinations and commit parties found guilty of crimes, after the filing of proper affidavits of prejudice, would be in *625violation of the fourteenth amendment to the constitution of the United States, in that it denies such parties the equal protection of the laws.
In the case of State v. Hayes, 81 Mo. 544, this court said: “A law authorizing changes of venue generally throughout the state, but exempting the city of St. Louis from its benefits, would be repugnant to section 1 of the fourteenth amendment to the constitution of the United States, which forbids a state to deny to any person the equal protection of the laws.” It is no answer to this proposition that the object of a preliminary examination is not to convict and inflict punishment, but simply to inquire whether a crime has been committed, and, if so, whether the party accused is probably guilty of committing it, for thé result may be not only to harass the party and put him to expense and trouble, but also to incarcerate him in the common jail. Indeed, it would seem that there is more reason for demanding an unprejudiced judge in cases where there is no right of appeal, than in cases where such right exists. The trial judge, whose rulings may be reviewed by an appellate tribunal, cannot, no matter how prejudiced he may be, act as arbitrarily as one whose decision is final. The right to an impartial preliminary examination before an unprejudiced court is a substantial right calculated to affect the accused in his rights of property, liberty and reputation, and, being such, a denial of it to one party in one forum, while granting it to others in other forums, is repugnant not only to constitutional guarantees, but to justice as well.
Mr. Endlich, in his work on the interpretation of statutes, section 178, says : “ A presumption of much importance in this country * * * is that a legislative intent to violate the constitution is never to be assumed, if the language of the statute can be satisfied by a contrary construction. The application of this rule requires that, whenever a statute is susceptible of *626two constructions, of which the one would make it unconstitutional, and the other constitutional, the latter is to be adopted.” And again, in section 258, the-same author continues: “Whenever the language admits of two constructions, it is obvious that the more reasonable of the two should be adopted as that which the legislature intended. If the words of the statute, though capable of an interpretation which would work manifest injustice, can possibly, within the bounds of grammatical construction and reasonable intepretation, be otherwise construed, the court ought not to attribute to the legislature an intention to do what is a clear,, manifest and gross injustice. On the contrary, the presumption always is, where the design of an act is not plainly apparent, that the legislature intended, the most reasonable and beneficial interpretation to be placed upon it.” Hence, our interpretation of “criminal prosecution” has the support of reason and authority*
Having concluded that a preliminary examination is a “criminal prosecution” within the meaning of section 4174, supra, and that said court is a criminal court, within the meaning of the same section, it follows that the judge of that court had no jurisdiction to hear and determine the issue raised, after the filing of the affidavits against him by the accused, and the subsequent trial and issuance of the writ of commitment werecoram non judice and void. The affidavits rendered him incompetent to hear and try the cause. The only jurisdiction that remained in him after the filing of the affidavits was to make an order for the election of a special judge, or the calling in of another regular judge-to dispose of the case. State v. Bulling, 105 Mo. 204, and cases cited.
II. The second question is as to the remedy. Section 5378, Revised Statutes, 1889, in relation to writs of habeas corpus, provides that, “if it appears that the prisoner is in custody by virtue of process from any *627court legally constituted, or issued by any officer in the service of judicial proceeding before him, such prisoner can only be discharged * * * where the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum or person.” This provision renders the legal proceeding a nullity where there is no jurisdiction, and a want of jurisdiction can be inquired into under a writ of habeas corpus. Ex parte Snyder, 64 Mo. 58: 9 Am. & Eng. Ency. Law, 193, and notes. Especially can this inquiry be had where no remedy by appeal is provided, as in the case at bar. Hurd on Habeas Corpus; 18 Fed. Rep. 49 ; 20 C. L. J. 162.
The relator is entitled to his discharge from imprisonment by virtue of the warrant of commitment from •the St. Louis court of criminal correction in the case heretofore mentioned, and the order will be that he be discharged from custody under that warrant, but be remanded to be dealt with according to the views expressed herein.