DISSENTING OPINION.
REYNOLDS, P. J.One Hornberg, on January 21, 1914, filed with the clerk of the county court of St. Louis county his petition, bond and affidavit for a dramshop license. These being duly presented to the county court, that court refused to try, hear, or determine the right of applicant to a license. Thereupon Hornberg filed a petition in the circuit court "or a writ of mandamus against the judges of the "ounty court to compel them to proceed in the matter of his petition and to hear, try and determine his right to a dramshop. This petition was duly assigned to division No. 2 of the circuit court of St. Louis county, over which the respondent here, the Honorable Gttstavitjs A. Wtjkdemann, presides. That judge, *46apparently in open court, ordered an alternative writ to issue commanding the judges of the county court by name to proceed to hear, try and determine the right of Hornberg to a license as a dramshop keeper or to show cause why they should not so do. The judges of the county court, over their own signatures, made return to this alternative writ, admitting that Horn-berg had filed his petition and application for a license to keep a dramshop, together with his bond and affidavit with reference to the ad valorem tax, and that it had remained on file for the time provided by law, and that they had entered up an order refusing to further hear, try and determine the right of Hornberg to a dramshop license, because and for the reason that the Legislature had passed a law, approved by the Governor (Laws 1913, pp. 199-202), providing for the appointment of a board of excise commissioners in St. Louis county (setting the law out in full), “which act, if constitutional, deprives this court of jurisdiction to try, hear and determine applications and petitions for dramshop licenses.” That while not learned in the law, they acted on the theory that it was a valid law and had refused to act upon the application. On the coming in of this return Hornberg filed a motion for judgment on the pleadings, setting up that the law creating the board of excise commissioners was null and void as special legislation in violation of section 53, article 4, of the Constitution of Missouri. This return and motion, it appears, was filed in the circuit court on February 5,1914, and on application of relator here the matter was passed until February 6th. On that day, this relator presented his petition to the circuit court, entitled, in the cause of State ex rel. Hornberg, Relator, v. John Weithaupt, William Buermann and Albert Wilmas, Judges of the County Court of St. Louis County, Missouri, Respondents, setting . out that he is the duly elected, qualified and commissioned prosecuting attorney within and for the county *47of St. Louis and represents and shows to the court that the proceeding in the cause wherein Hornberg was relator and John "Weithaupt, William Buermann and Albert Wilmas, Judges of the county court of St. Louis county, were respondents, is a civil suit, “in which the county of St. Louis is interested and that under and by virtue of the laws of the State of Missouri it is his right and duty to appear herein in behalf of the respondents, as judges of the county court and to attend to all matters pertaining to this proceeding for and on behalf of the respondents. That respondents have refused to permit your petitioner to file a return to the alternative writ heretofore issued herein for and on their behalf and refused to consult with him concerning the matters of law and fact connected with this proceeding and have refused to furnish him with any information about it. That he was not consulted about and had nothing to do with the preparation and filing of the paper heretofore filed herein purporting to be the return of John Weithaupt, William Buermann and Albert Wilmas to the writ directed to the same persons as judges of the county court. That the said pretended return was procured as a result of the connivance and collusion between the relator and respondents. That the relator has an undue influence over the respondents and that by the exercise of the said undue influence respondents were induced to and did employ other counsel than your petitioner to prepare and file the said pretended return with the sole purpose in view of preventing, your petitioner from preparing a proper return to the writ herein and from taking any part in this proceeding. That the pretended return does not properly present the issues of law and fact arising in the ease and that unless your petitioner is permitted to present a proper return raising all the said issues the process of said court will be abused and the ends of justice perverted.
*48“Now, therefore, your petitioner prays that the pretended return of the said John Weithaupt, William Buermann and Albert Wilmas be stricken from the files for the following reasons, to-wit:
“First. That it fails to state that it is made by respondents as judges of the county court and is therefore not responsive to the writ.
“Second. That the said pretended return was procured by collusion between the parties.
“Third. That it does not properly present the issues of law and is not a correct statement of the facts.
“Fourth. That your petitioner was not permitted to prepare the said pretended return or consulted with reference, thereto.
“Tour petitioner further prays that an order may issue directing him as the legal adviser of the county court and of the judges thereof in their official capacity to prepare and file a proper return to the alternative writ herein for the reason that it is by law made the duty of your petitioner to represent the respondents in suits of this character and that your petitioner is the only person authorized by law to so represent them. Tour petitioner further prays that the document heretofore filed herein, entitled ‘Motion for peremptory writ’ be also stricken from the files for the reasons above set forth.”
On that day, February 6, the respondent here, Hon. G. A. Wurdemann, as judge, and during the session of the court, having before him this motion of the prosecuting attorney, denied it, the court, however, granting relator here permission to appear “as a friend of the court” in the hearing of the cause.
On the forenoon of that day, however, and before the motion of the prosecuting attorney had been filed and acted upon by the circuit court, the prosecuting attorney presented his petition to one of the judges of our court and that judge issued the alternative *49writ, it being recited in the petition for tbe writ that the relator had before -then presented his motion or petition' to the circuit court and that his petition had been denied. In point of fact it appears that the motion or petition had not been presented to and denied by the circuit court when application was made to us for the issue of the alternative writ. That occurred afterwards, the alternative writ being served on the circuit judge on the same day but after that court had acted. The return having been duly filed in our court to the alternative writ, relator moved for judgment. The cause has accordingly been submitted to us on the writ and return.
It is settled law in this State that a writ of mandamus “will not issue commanding an'inferior court, tribunal or ministerial 'body to act until it is first established by the evidence that said court, tribunal or ministerial body has been legally requested to act, and that it has illegally declined to do so.” [State ex rel. Abbott et al. v. Adcock et al., 225 Mo. 335, l. c. 363, 124 S. W. 1100.] Here the lack of demand and refusal to act prior to presentation of the application of the petition for the writ is clear, but on that being suggested by counsel for respondent, on the coming in of tbe return, the Honorable Judge, respondent here, in person and in open court, waived this defect, on our suggestion that we would, if it was insisted upon, quash the alternative writ and issue a new one. So that the question that the application to us was premature and our writ issued prematurely, is out of the case.
It is clear that if the return of the county judges, as made by them, is to remain in the case, a constitutional question is presented in this case by that and by the motion for judgment on it, interposed in the circuit court by the relator in that case; indeed the return of the judges discloses that a constitutional *50question was presented in the county court. So that under the decision of our Supreme Court in State ex rel. Sale v. Nortoni et al., Judges, etc., 201 Mo. 1, 98 S. W. 554, we would have no jurisdiction in this cause. If, however, that return is withdrawn by the relator here and a-new return is made with that question entirely eliminated, the majority of my associates are of the opinion that the cause is within our jurisdiction. Speaking for myself, and on the record before us, I cannot see how we' can treat that return as a nullity, or that its withdrawal eliminates the Constitutional question. We have no power by mandamus to order the circuit court to strike that return out, even if we order that court to allow the relator here, as prosecuting attorney, to appear and conduct the Homherg case for the judges of the county court. As said by our Supreme Court in State ex rel. Union Electric Light & Power Co. v. Grimm, 220 Mo. 483, l. c. 490, 119 S. W. 626, “Of course, this court has no right or power in a proceeding by mandamus to direct what its ruling should be, but we have the right, and it is our duty, to require the circuit court to exercise its jurisdiction.” But we cannot anticipate what the action of the court or of the prosecuting attorney will be, and I am unable to see, with all due deference to my brethren, how it is possible for us to shut our eyes to the fact that, as the case is presented to us, the constitutional question, that is, a question calling for the determination of a constitutional claim, is in the case. With that view of it, my own opinion is that the alternative writ should be quashed for want of jurisdiction in our court to issue it in this case at all. As to that, as I understand, I am in disagreement with both my learned brethren.
The fundamental question in the case, however, is the right of the prosecuting attorney of the county of St. Louis to require the respondent, as judge of the circuit court, to strike from the files the return *51which has been made by the county judges, they themselves signing that return, and to allow him to appear in the case, draw up and file the return therein for these judges, even if contrary to their views, and manage and control all further proceedings in the case. That is the real point involved here, and that is the point to which my learned brother Noutoni has chiefly directed his opinion. I cannot agree to the view that the prosecuting attorney has this'right. The relator claims the right to do this because the county is in-' terested.
In the first place the county, as a county, is not a proper party to this proceeding. Our court has said, in Bell v. County Court, 61 Mo. App. 173, l. c. 176, that the alternative writ in that case had been directed to the county court;' that this was error; that the writ should have run against the justices of the county court by name.
In State ex rel. v. Burkhardt, 59 Mo. 75, it is said (1. c. 78): “It is not perceived upon what principles, or by what authority the county of Moniteau was made a party to the original proceeding. The writ of mandamus is in form a command in the name of the State, directed to some tribunal, corporation or public officer, requiring them to do some particular thing therein specified, and which it has been previously determined that it is the duty of such tribunals or other person to perform.” This same proposition was decided at an early date by our Supreme Court in Platte County Court v. McFarland, 12 Mo. 166. There it appeared that the cause then before the court was docketed as one against the county court of Platte county, and was a proceeding against the county court to compel that court to perform its duty respecting the opening of a public road. It appears by the statement of the case that McFarland and others, being the commissioners to survey and mark out a State road, made a report of their proceedings to the county *52court, filing a report of their survey. This report was rejected by the court for its alleged irregularity and further time was given the commissioners to make a new report. On the coming in of this latter, certain objectors resisted it and the county court again refused to receive it. On this the commissioners sued out a writ of error from the circuit to the county court. That writ was directed to the justices of the county court. On the return of the writ to the circuit court, it appears that the cause was docketed as one against the county court and on the hearing of it the judgment of the county court, rejecting the report of the commissioners, was reversed by the circuit court and a judgment for costs rendered. On this judgment a writ of error was sued out from the Supreme Court. Says Judge Scott, speaking for the Supreme Court (1. c. 168), in disposing of the contention that the writ should have been directed to the county court, not to the justices: “It is impossible to discover any principle on which the county court of Platte could have been made a party to the writ of error.”
The statutes relating to the duties of the county attorney or prosecuting attorney (sections 1007, 1008, Revised Statutes 1909), are set out by my brother Nortoni, so that it is not necessary for me to repeat them in full. They expressly provide that the prosecuting attorneys “shall commence and prosecute all civil and criminal actions in their respective counties in which the county or State may be concerned, defend all suits against the State or county,” etc., and that he “shall prosecute or defend, as the ease may require, all civil suits in which the county is interested, represent generally the county in all matters of law, investigate all claims against the county, draw all contracts relating to the business of the county, and shall give his opinion, without fee, in matters of law in which the county is interested, and in writing when demanded, to the county court, or any *53judge thereof. ’ ’ I find nothing in these statutes which throws upon him the duty of acting in court for the judges of the county court, when not required by them to so act; he is required to give his opinion in writing to the county court or any judge thereof, only “when demanded.” Here the relator avers that his opinion was never ashed in this matter; that he was never consulted. I find no authority in law which requires the county judges, even the county court, to demand and secure his opinion before acting, or on his giving his opinion to act only as he advises. Suppose a claim against the county is before the county court for action. The prosecuting attorney resists it and advises and argues against its allowance. Will it be pretended that the county court must determine the cause as he suggests 1 That would be to assert a new doctrine in Missouri. I find in the omission from the statutes of any command on the judges of the county court to be controlled by the written opinion of the prosecuting attorney, a distinct legislative expression of intention, that this is a matter which is to be left to the county judges; is one of the responsibilities of ■their official position. For if it is true that the judges of the county court are compelled,, willy-nilly, to. accept the opinion of the prosecuting attorney on a matter submitted to them, the responsibility of the. judges would entirely disappear and the will and the opinion of the prosecuting attorney, an adviser merely of the court, would be substituted for the opinion of the judges of the county court.
In many matters, and especially in the most material matters relating to the issuance of dramshop licenses, these judges act judicially. That in acting judicially they are to be controlled by the prosecuting attorney would surely be a new doctrine in our State. That they do act judicially in many matters and in the final act of granting the license, see, among other cases, State v. Evans, 83 Mo. 319; State ex rel. Smith v. *54County Court of Platte Co., 83 Mo. 539; State ex rel. Campbell v. Heege, 37 Mo. App. 338, l. c. 346; State ex rel. Pulliam v. Fort, 107 Mo. App. 328, 81 S. W. 476.
But it is said that the right of the prosecuting attorney to interfere in this matter and take charge of this litigation, is to be found in these words: “He shall prosecute or defend, as the case may require, all civil suits in which the county is interested, represent generally the county in all matters of law,” etc. In point of fact, the claim made by the relator here, that as prosecuting attorney he has a right to control tíre proceeding rests solely upon the proposition that the county is interested; he does not, in so many words, claim that he is in all cases attorney for the judges. These cases of State ex rel. Gordon v. Burkhardt, State ex rel. Conran v. Williams, and State ex rel. Baker v. Fraker et al., are in point here, as I think, for the reason that they hold that having an interest does not authorize one to interplead or interpose in a proceeding by mandamus. As the relator asserts his right to control the mandamus upon the ground that the county has an interest in the proceeding, I think that these cases are against his claim. While it may be that the county and the people thereof are interested in the collection of the fees for dramshop licenses and in the issue of dramshop license, they have no more interest in that than in dozens of other matters pertaining to the general public. The interest referred to in the statute and which the prosecuting attorney is to protect, must appear in and by the pleadings, or, if not so disclosed, must be capable of being brought before the court by way of intervention by the county in a pending action. This may be done in any ordinary civil action. But while mandamus is now treated as a civil action, our statute (R. S. 1909', secs. 2146, 2555), being practically that of Queen Anne (9 Anne, Oh. 200'), it is the settled law of this State that parties no.t of- record, no matter what their interest, cannot *55intervene in a proceeding by mandamus. That was expressly decided in State ex rel. Gordon v. Burkhardt, supra. In that case, at page 78, it is said, the writ having been addressed to Burkhardt, as sheriff and ex officio collector alone: “The county had no right to make any return to an alternative writ not directed to it, if indeed the writ could be directed to a county as such. Under the statute, issues can only be made in this proceeding between the person to whom the writ is directed and delivered, and the party suing or prosecuting such writ. Although the county or the people of the county at large may have had an interest in the result of the proceeding, it could not be made a party thereto. The general provisions of the practice act, authorizing all persons having or claiming an interest in the subject-matter of the controversy to be made parties plaintiff or defendant, do not apply to proceedings by writ of mandamus. The county, through its prosecuting attorney, with the consent of the defendant, Burkhardt, might, in a return in his name, have urged as a defense most, if not all, the matters set out in the petition filed by it in the cause. Having been improperly permitted in the first instance to assert its claims to the funds in controversy in this action, no error was committed by the circuit court in dismissing its petition or interplea.”
In State ex rel. v. Williams, 96 Mo. 13, 8 S. W. 771, State ex rel. v. Burkhardt, supra, is expressly affirmed on this point, it being reiterated (l. c. 18) “that the general provisions of the practice act allowing all persons having an interest in the suit to be made plaintiffs or defendants had no application to proceedings by mandamus. It is, therefore, clear that the return must conform to the common law rules; and this is none the less so because the relator may plead to or traverse all or any of the facts stated in the return.”
*56In State ex rel. Baker v. Fraker et al., Justices of the County Court, 166 Mo. 130, l. c. 142, 65 S. W. 720, the Burkliardt case and Williams ease, supra, are cited approvingly as establishing as the law of this State, that “the provisions of the general practice act requiring all parties in interest to be made plaintiffs or defendants, do not apply to proceedings by mandamus.” As far then as concerns the right of the prosecuting attorney to appear and control this cause by reason of the county having an interest, being a party'in interest, although not a party of record, it seems to me conclusively established by the decisions of our Supreme Court in the three cases last above cited that, by reason of that interest, even if it exists, the prosecuting attorney has no right to assert it in the Hornberg case, or to interfere in and control that case; in the interest of the county, the county not a party, he cannot interfere in the mandamus proceeding.
This seems to be clear also from another point of view. That is, that the respondents in the case of State ex rel. Hornberg v. Judges of the County Court, is an action in which they, as judges, it is true, but individually, must make the return as they did in this case. It is true that it was alleged in the application which was made to us for the writ by the relator here, that that was filed in court by attorneys other than himself, but that is entirely immaterial. The return is made by the judges themselves; is their return; is not the return of the county; is not the return of any attorney; but it is the return of the individuals against whom the writ was directed and which commanded them to make the return.
The alternative writ is not only directed to the person occupying the office, but the return must be made by him. Says High on Extraordinary Legal Remedies (3 Ed.), sec. 446: “When the aid of a mandamus is invoked against an inferior court, it would seem to be sufficient, ordinarily, to address the writ *57either to the court as such, or to the individual judges composing it. But when there are other judges authorized to hold the term of the court, the mandamus should he addressed individually, since in case of disobedience to the writ the power of enforcing obedience is exercised over the judges personally.”
The old and often followed case of St. Louis County v. Sparks, 10 Mo. 117, is cited in support of this. In the Sparks case it was urged that the writ having been addressed to the justices of the county court and severally served on them in vacation, that there was no warrant for this; that it should have been addressed to the court. Answering that, our Supreme Court said (l. c. 120): “A mandamus in the alternative may be served on the officers composing the court in vacation, and ... a delivery of a copy of the process showing the original, is a sufficient service. . . . It seems it may be addressed to the court or to. the individuals composing it.” Since that decision it has been the invariably approved practice to issue these writs against the judges composing the court, and the writ is served on them, not in term time but on the judges in chambers or in vacation, as other writs against individuals are served. That has always been so in the case of writs served upon the judges of this court by direction of the Supreme Court and we have invariably followed’it in our own practice.
So fully has the rule that the direction of the writ is to the individual, and that he is the one who is to make the return, been recognized, that where the return of the judge or judges or court is signed by attorney, it has been challenged for lack of individual signature. Thus in State ex rel. Wittenbrock v. Wickham, Judge, 65 Mo. 634, the return was challenged on the ground that it was not the bona fide answer of the judge but a defense made and set up by an attorney. Answering this contention, our Supreme Court said (l. c. 636), that as the law does not require *58the return to he sworn to, and as the judge was rep - resented before the Supreme Court by responsible attorneys of the court who have filed his return, “we cannot on the mere suggestion of the relator, say that this is not Judge Wickham A return.” This undoubtedly means that if it had been shown that it was not the return of the judge but merely of the attorney, it would not have been sufficient.
This was followed by our court in State ex rel. Castlio v. Edwards, Judge, 11 Mo. App. 152.
In Ex rel. Douglass v. Circuit Judge, 42 Mich. 495, it is said (l. c. 497): “The answer filed is not signed by the circuit judge. It purports to have been drafted by attorneys and not to have been submitted to the respondent for approval by him. We do not consider, therefore, what appears therein, but have treated the case as on demurrer to the showing made by the relator.” That is to say, the Supreme Court of Michigan treated a return not signed by those to whom it was directed, or by some attorney by their authority, as a nullity. What that court, in line with our own court, has held in the Edwards case, supra, and our own Supreme Court in the Wickham case, supra, would hold as to a return made by an attorney, which is not only not submitted to the respondent but by which, as here it is expressly stated, it is intended to repudiate the return of the respondents in the Hornberg case, and is to be a return, set up and devised by the attorney himself, without the assent and contrary to the will of the judges of the county court, is not difficult to determine.
I think that the case at bar, on this point falls directly under what is said by the Supreme Court of the United States in the case of United States v. Boutwell, 17 Wall. (84 U. S.) 604.
It is claimed that the decision in that case, as to this point, has been disapproved or qualified by later decisions of that court. An accepted text-writer, (2 *59B'ailey on Habeas Corpus, p. 786) treating as well of mandamus and of other extraordinary writs, in commenting on a decision of the Supreme Court of Wisconsin as adverse to that of the United States v. Bout-well, supra, the Wisconsin court holding that the Supreme Court of the United States had receded from the decision in the Boutwell case, says: “It will appear, however, from a reading of the case cited in the federal court (Commissioners v. Sellew, 99 U. S. 624), that the position first assumed by it has not been changed in the subsequent case. It will also appear that that court assumes the very opposite of the premises assumed by the Wisconsin court.” Mr. Bailey then quotes extensively from United States v. Boutwell, supra, thus: “The office of a writ of mandamus is to compel the performance of a duty resting upon the person to whom it is sent. That duty may have originated in one way or another. It may, as is alleged in the present case, have arisen from the acceptance of an office which has imposed the duty upon its incumbent. But, no matter out of what facts or relations that duty lias grown, the law regards, and what it seeks to enforce by writ of mandamus is, the personal obligation of the individual to whom it addresses the writ. If he be an officer and the duty is an official one, still the writ is aimed exclusively against him as a person, and he only can be punished for disobedience. The writ does not reach the office. It cannot be directed to it. It is therefore in substance a personal action, and it rests upon the avowed and assumed fact that the defendant has neglected or refused to perform a personal duty, to the performance of which, by him, the relator has a clear right. . . . Thus it is the personal default of the defendant that warrants impetration of the writ, and if peremptory mandamus be awarded, the costs may fall upon the defendant. ’ ’
*60The decision in the Bontwell case is distinctly affirmed hy the Supreme Court in Warner Valley Stock Co. v. Smith, 165. U. S. 28. That is substantially in line with the decisions of our own Supreme Court, to which we have referred, and to which we shall hereafter refer in' treating of the office of the writ of mandamus. The case of Commissioners v. Sellew, supra, on its facts bears no analogy to the Boutwell case, nor to the case before us. The principle announced in the Boutwell case, it was held, is not applicable to the Sellew case, for in the Boutwell case respondent, an individual, was proceeded against, true as an officer, while in the Sellew case the writ was against the respondents as a body, “a corporation created and organised for the express purpose of performing the duty, among others, which the relator seehs to have enforced. The alternative writ was directed both to the board in its corporate capacity, and to the individual members by name, but the peremptory writ was ordered against the corporation alone. As the corporation can only act through its agents, the courts will operate upon the agents through the corporation. When a copy of the writ which has been ordered is served upon the clerk of the board, it will be served upon the corporation, and be equivalent to a command that the members of the board shall do what is required.” (Italics ours.)
It is hardly necessary to say that the judges of the county court of St. Louis county are in no sense a corporation, nor would service upon the clerk of the county court have brought these defendants into, court, or a peremptory writ issued with service upon that clerk have been binding upon the judges, or that disobedience to it by them under such form of service would be punished on them as for contempt. Nor would the county be liable for costs if the case is determined against the respondents. The respondents, as said in the Boutwell case, supra, and others cited, are pre*61sumably liable for costs and subject to attachment for contempt in case of refusal to make any return or to obey the writ, and these are reasons given why the proceeding is against the individual and not against the office. As well might it be said that where the writ of mandamus issues from the Supreme Court to our court that service of the writ upon the clerk of our court will be good service upon us as judges. "While no decision passing upon that question has ever arisen, the invariable practice since the creation of this court in 1876, has been to serve such writs individually upon the judges of this court.
In some jurisdictions it is held: “A continuing duty may be enforced against successors of the officer originally in default,” as illustrated in State v. Cornwall, 97 Wis. 565; in others it is held that “it will not lie against such successors when not themselves in default for the failure of their predecessors to perform the- duty.” So it is held in People v. Burns, 106 N. T. App. Div. 36, 94 N. Y. Suppl. 196; State v. Cincinnati, 7 Oh. Dec. (reprint) 326; Holdermann v. Schane, 56 W. Va. 11.
Referring to the eases cited in support of the position of the relator, and first taking up State ex rel. Campbell et al. v. Heege et al., Judges of the County Court of St. Louis County, 37 Mo. App. 338, I am unable to see that it lends any support to the contention of counsel for the relator. All that is said as touching the propriety of the application for certiorari being made by citizens of St. Louis county instead of by the Attorney-General or the prosecuting attorney of the county, is that the reason the petitioners, taxpayers and citizens had appeared in our court and asked special leave to institute the proceeding in their names, was that they had applied to the Attorney-General of the State and to the prosecuting attorney of St. Louis county for permission to make the application at their relation respectively, but that in *62both instances permission had been refused. Referring to this last statement our court said (l. c. 345) that it had not been controverted and that the prosecuting attorney of St. Louis had assented to the truth of it in so far as he was concerned. Our court then says: “We' understand that the reason why the Attorney-General refused the use of his name was that he regarded it as a local affair which should be prosecuted in the name of the prosecuting attorney; and that the reason why the prosecuting attorney in like manner declined the use of his name was that there is a statute requiring him to appear in such-cases for the county court—which rendered it inconsistent with his view of duty to act at once as the prosecuting officer and as counsel-for the respondents. We incline to think that his views of duty were correct, and, in consequence of the refusal of the Attorney-General and prosecuting attorney of the county to institute the proceeding, we also think that, to prevent a. possible failure of justice, it was within our discretion to grant the writ upon the application of assessed, tax-paying citizens of the township.” That is all that is said in the opinion that can be claimed to have any bearing here. In a way it is obiter and certainly is not decisive of the question that is here presented. If any inference is to be drawn from it, it would seem to be that the prosecuting attorney, being the official adviser of the county court, could take no position .antagonistic to it in court—which is just what the relator here seeks to do.
Clark & Grant v. Lyon County, 37 Iowa, 469, another case referred to in support of the right of the county attorney to appear in an action to which the county was a party, is an action directly against the county eo nomine to compel the payment of certain warrants. It appeared that the board of supervisors of the county were the same persons who had issued the warrants and, it was charged, issued them for *63an illegal purpose and without consideration. In an action brought on these warrants against the county, it appeared that the board of county commissioners, ignoring the county attorney, had employed other attorneys whom it was understood would not contest the validity of these warrants. The district court, on the application of the district attorney, who was also ex officio county attorney, applied for leave to file and make the defense in the above case in behalf of the county. The district court declined to allow the district attorney to appear and file an answer in the case. From this refusal the district attorney appealed to the Supreme Court. The court held that it was the right and duty of the district attorney to appear for any county in his district, “in all matters in which it may be a party or interested, in the district court of his district.” The use of the word “interested” here is of no particular significance, for in the proceeding before the court the county was a party of record. The court, however, as we have elsewhere noted, held that the matter of the refusal must be brought to the Supreme Court only, by appeal. The court further said: “We do not hold, that if the district attorney had been allowed to appear and defend in the court below, and had been unsuccessful, he could, • of his own motion, and against the wishes, and in opposition to the judgment of the board of supervisors, appeal the cause to this court and protract the litigation.”
Neither Clough & Wheat v. Hart, 8 Kan. 487, nor Waters v. Trovillo, 47 Kan. 197, are particularly in point here. Both were actions on contracts of employment of private attorneys by the county commissioners. The point in decision in each was the power of these bodies to employ outside attorneys and contract for their payment by the county when the commissioners, as representing the county, were parties. The decision of the court was that as the statutes of *64Kansas made no provision for the employment or pay of any outside attorney to assist in the prosecution or defense of claims against the counties or cities, that the contracts were ultra vires and payment thereunder could not be enforced against the county.
In Board of County Commissioners v. Jones, 4 Okla. 341, practically the same point is decided, and that was the sole question involved, namely, the authority of the county authorities to employ and pay out of the public funds special attorneys. The decision is, that no such authority existed. While in the discussion of this matter a good deal is said, both as original matter and by way of quotation, about the county attorney being elected by the people and his authority to appear in all cases in which the county is employed, as a matter of fact, it is obiter.
The Board of County Commissioners v. State Capital Co., 16 Okla. 625, does support the contention of relator here as to his authority to appear and conduct all cases in the court in which the county is a party, and even goes to the extent of holding that the county attorney is not bound to follow the direction and advice of the coxinty commissioners in regard to the conduct of the litigation against the county. This decision stands alone on that proposition. We doubt if the rule theré announced has ever been recognized in practice, certainly not by judicial decision, in our State. Judges.óf our county courts, as well as prosecuting attorneys, are elected by the people and are the agents of the people, each within their own sphere. But it has never been even suggested heretofore that the judges of the county courts were subordinate to the prosecuting attorney, or that the will of the. latter should govern in matters within the ministerial, judicial, or even gwasi-judicial powers ,of the county court. The Oklahoma decisions certainty are against the idea, so far as I know heretofore universally entertained in this State oh that matter. While the prosecuting at*65torney is the law officer of the people, and in the proper discharge of his duties is responsible to none hut the people, the judges of the county court are no less the agents of the people within well defined limits and responsible for their acts to the people alone. Both however, that is, the judges and the attorney, are after all confined to their own lines. The prosecuting attorney may possibly control the acts of the county judges through the courts, by proper proceedings, but not by his own will. When acting for the county court or its judges, he is in the position of any other lawyer toward his client. If his views are not those of the judges of the county court on a matter within their jurisdiction and authority, he should follow the course approved by our court in State ex rel. Campbell v. Heege et al., County Judges, supra, and keep out of the case. He can always reach the acts of the county court in some other way, as here, for instance: If a license is unlawfully issued to conduct a dramshop, its issue does not prevent the prosecuting attorney from prosecuting the keeper. As to the relation of attorney and client, it has been well said in Allen v. Stone, 10 Barb. (N. Y.) 547, l. c. 550, “That a man’s rights may be affected, and he, perhaps, ruined by the act of an attorney whom he never employed, and may never have known, and without any notice whatever, is a position that must be sustained, if at all, by mere force of authority. It has no foundation in reason or justice, is intolerable in practice, and contrary to a fundamental principle that every man should have a day in court. ... It also violates another principle, that one cannot act for another without authority, express or implied.”
Coming to the action of respondent, Judge Wtjedbmann, in overruling the motion of relator to strike the return of the judges from the files, and declining to allow the relator, as prosecuting attorney of the *66county, to take charge of the pending proceeding before the court in which the judges of the county court were the respondents, as we have seen, it was held in Clark & Grant v. Lyon County, 37 Ia. 469, that on the refusal of the district court to allow the public officer, the district attorney, to appear and control the case in which the county was a party, that the appellate jurisdiction of the Supreme Court was ample and adequate to reach the matter; that being so that mandamus would not lie.
The general rule that mandamus will not lie when there is an adequate remedy, as by appeal, is stated in 26 Cyc., p. 158, par. 2, to be that it, “will not lie to. control or review the exercise of the discretion of any court, board, or officer, when, the act complained of is either judicial or quasi judicial.” [See also Am. & Eng. Ency. of Law (2 Ed.), p. 753.] And it is further said in Cyc. (p. 158, par. 3): “While mandamus may be invoked to compel the exercise of discretion, it cannot compel such discretion to be exercised in any particular way. ’ ’ State ex rel. v. Jones, 155 Mo. 570, 56 S. W. 307, is cited for this. It is further said in 26 Cyc. 188, that “While a writ of mandamus will not as a general rule issue to review an exercise of judicial discretion, it may be employed to compel an inferior tribunal to act or to exercise its discretion, although the particular method of acting or the manner in which the discretion shall be exercised will not be controlled. But as a general rule it will not issue for this purpose where there is a remedy by appeal or other method of review.” In 26 Cyc., page 140, par. C, it is said: “The writ is employed only in unusual cases where other remedies fail, and it is hedged about by many conditions totally inapplicable to the ordinary suit at law. . . . The issuing of the writ therefore is generally, almost universally, considered discretionary, and to this extent only is the proceeding a prerogative one.” So it is *67said in 19 Am. & Eng. Ency. of Law (2 Ed.), p. 751. Many decisions by our Supreme Court are to tbe same effect, as see State of Missouri ex rel. Ensworth v. Albin et al., 44 Mo. 346; State ex rel. v. Wilson, Judge, etc., 49 Mo. 146; State ex rel. Morse v. Burckhartt, Judge, 87 Mo. 533; State ex rel. Campbell v. Cramer, 96 Mo. 75, 8 S. W. 788; State ex rel. Herriford v. McKee, Judge, 150 Mo. 233, 51 S. W. 421; State ex rel. v. St. Louis, 158 Mo. 505, 59 S. W. 1101; State ex rel. v. Fraker, 166 Mo. 130, 65 S. W. 720; State ex rel. v. Gibson, 187 Mo. 536, 86 S. W. 177; State ex rel. Missouri Glass Co. v. Reynolds et al., Judges, etc., 243 Mo. 715, 148 S. W. 623.
In State ex rel. Morse v. Burckhartt, supra, while' a proceeding for prohibition in which' the writ was denied, Judge Henry, speaking for our Supreme Court, discussed the question of mandamus at considerable length, referring particularly to State ex rel. Fitzpatrick v. Meyers, 80 Mo. 601. The Meyers case was a proceeding by mandamus, to compel the county court of Nodaway county to issue a dramshop license to the relator. The question of the controlling effect of what was known as the “Downing Law” was involved. Referring to the Meyers decision in the Burcldiartt case, supra, our Supreme Court says in the latter (l. c. 537):
“Whether the county court was authorized to grant a dramshop license for a saloon, within three miles of the State University, depended upon the effect of the ‘Downing Law’ upon the three mile act. If the ‘Downing Law’ repealed it, the county court had, and if not, it had not authority to. grant the license. The circuit court in the mandamus proceeding had jurisdiction to determine that question, and that it erroneously decided it, if such should be our opinion, does not affect the jurisdiction of the court. Whenever a court errs in expounding a statute, it gives or denies a right, which it is not, strictly speaking, authorized to do; and in every case, with as much *68propriety as in this, it might he said that the court had no right to render the judgment entered. The question is not whether the court was authorized to render the judgment entered, hut whether it had jurisdiction to enter any judgment at all. ... No man has a right to anything contrary to law, hut courts frequently err in declaring one to have a right which, on a proper construction of the law, would be denied him. ... If the circuit court, in its judgment against the county court, erred, an appeal or writ of error might have been prosecuted to reverse it; and it is no answer to this that the judges of the county court refused to prosecute an appeal or writ of error. This court cannot interfere by this extraordinary writ to save the people of the district within which dram-shops are prohibited from the consequences of the obstinacy, or whatever it may have been, which prompted the county judges to refuse to prosecute an appeal.’’ Even a stronger case is Martin v. The State, 12 Mo. 471, where at page 475 it is said: “A circuit judge, therefore, discharging (a prisoner under habeas corpus) against this provision of the statute, may be considered as acting indiscretely, even erroneously; yet having jurisdiction over the subject, his order discharging, must be considered a justification to the jail- or in turning out the prisoner, thus ordered to be discharged.”
This case is cited and extensively quoted from with approval in State ex rel. Herriford v. McKee, Judge, supra, l. c. 242 and 243. Even stronger on this is State v. Wear, 145 Mo. 162, l. c. 190 and 203, 46 S. W. 1099.
Applying the principle announced in these cases to the case at bar, the determination of the right of the prosecuting attorney of St. Louis county to appear in this case, to allow him to withdraw the return made by the judges of the county court and substitute one of his own, and to tahe charge of that case, on the ground that the county was interested, and that he, *69as prosecuting attorney of the county, was entitled to control the case, is an attack upon the judicial action of the circuit judge in a matter in which he had a right to err, and the correction of his error rests not by the extraordinary writ of mandamus but by appeal. In short, the action of the circuit judge was judicial, was over a matter within his jurisdiction and not such an action as can be controlled by the writ of mandamus. In line with the decision in the Burckhartt case, supra, see also State ex rel. Springfield Traction Co. v. Broaddus, 207 Mo. 107, l. c. 121, and following, 105 S. W. 629. This latter case was a decision In Banc, concurred in by all of the judges except Judge Gantt.
The circuit judge did not decline to hear the prosecuting attorney on his motion -f did not strike that motion from the files, but hearing it, considering it, acted on it and overruled it. That was judicial action. The question then is, can we reach that action of the Hon. Circuit Judge by mandamus ? His court is one of general jurisdiction. He had power to issue the writ of mandamus then before him, and had jurisdiction over the subject-matter. Even if he erred in his action in overruling the motion or petition of the prosecuting attorney, relator, he was acting within his judicial power. He had a right to err. That error cannot be reached by mandamus. So an unbroken line of decisions of our Supreme Court all say.
For-these reasons I am clearly of the opinion that the alternative writ should not have been issued and that having been issued it should be quashed and the respondent circuit judge discharged therefrom. On these two grounds, therefore, first, the grave doubt as to the jurisdiction of our court in this case at all, under the decision of the Supreme Court in State ex rel. Sale v. Nortoni et al., 201 Mo. 1; and, second, under State ex rel. Morse v. Burckhartt, 87 Mo. 533; State ex rel. Gordon v. Burkhardt, 59 Mo. 75; State *70ex rel. v. Williams, 96 Mo. 13; State ex rel. Baker v. Fraker, 166 Mo. 130; and State ex rel. Springfield Traction Co. v. Broaddus et al., 207 Mo. 107, I think that we are bound to quash the alternative writ.
Deeming the decision rendered by the court con-, trary to the decisions of the Supreme Court in the cases last above cited, I ask that this cause and proceeding be certified and transferred to the Supreme Court.