I do not agree with the reasoning employed nor the conclusion reached by my learned brother in the majority opinion prepared by him in this case.
The petitioners seek relief under the auspices of the writ ofhabeas corpus. This writ cannot be better defined than the process designed and employed to afford summary relief against an improper restraint of personal liberty. It is only when it is invoked for that purpose under a sustaining state of facts that the granting of the same is authorized. Sanctioned under other circumstances or conditions, as sometimes happens in the granting of the other prerogative writs, it may result in an interference with the exercise of the legitimate power of a subordinate tribunal and thus thwart the proper administration of the law.
The unadorned facts, considered in the light of the applicable law, will enable it to be conclusively determined whether the writ herein prayed for should be granted.
The prisoner's ownership of the property at the time he was taken into custody by the sheriff is conceded. Otherwise the sheriff — according to the construction placed upon the facts by the petitioners — could have acquired no claim to ownership in the ring, either by gift or otherwise, and hence could have conferred none on the petitioners in satisfaction of a feigned or real obligation or for any *Page 32 other purpose. We will later more fully show that the ownership of the ring being, under the conceded facts and the plain provisions of the law, in the prisoner at the time he was arrested, has thus continued. So far, therefore, as concerns the facts in this case and its proper disposition under the law, the proceedings in replevin may be relegated to the limbo of irrelevant matter.
Putting it mildly, as courtesy prompts and not with that verbal force the facts may warrant, the majority opinion declares that if the trial court was empowered to make any order in regard to the custody of the ring it was to require it to be delivered to the coroner and not to the clerk of the court. There is no authority, either in custom or the code, for such a course of procedure. Our circuit courts are possessed of general jurisdiction for the full and complete disposition of any cases within their purview. Thus empowered they may, not only by custom but under a well recognized common-law procedure often exercised, order property in their custody deposited in the "registry of the court," which means the clerk.
Under the statute (Sec. 4120, R.S. 1919) property which comes into the hands of a sheriff, coroner, constable or marshal, which is alleged to have been stolen, purloined, embezzled or obtained by false pretenses or by any of the modes denounced in the article concerning offenses against public or private property, shall be held by such officer, subject to the order of the court or the officer authorized to direct the disposition of the same. There is no fact, express or implied, to support the pretense that this ring came into the possession of the sheriff under any of the conditions enumerated in the statute above cited; and the coroner never having had possession of it, the statute has no application to him. There is no other statute conferring power upon a coroner in regard to the custody of property or authorizing a court to order the exercise of such power. Other than in the exercise of a "Coroner's Quest," as the old common law designated the duties of that officer, he is only empowered, under our statutes, to serve process when the sheriff is disqualified (Sec. 11648, R.S. 1919): and to discharge the duties of the latter when the office of sheriff shall become vacant (Sec. 11649, R.S. 1919).
It is to our mind, begging the question to contend that the order of the court under which the petitioners are held was not made under Section 4119, Revised Statutes 1919. The facts in the case and not conclusions based upon inapplicable promises will best serve to determine this question. The property was at the time of the prisoner's arrest, in his possession and his ownership was unquestioned. A controversy arose in regard to its ownership and the court ordered it into the custody of the clerk. This order did not and the court was not authorized to waive the State's paramount lien on the property. The jurisdiction of the court was complete, both as to the persons *Page 33 and the subject-matter, and its order, aside from its unquestioned control (which we will refer to later) by reason of the legal custody of the property, clothed it with ample power in the proper administration of justice to provide for the safe-keeping of the property until the State's lien had been satisfied and any other controversy in regard thereto had been determined. The action of the trial court in the premises was, therefore, not only supported by precedent, but was a wise and wholesome exercise of its power.
As we interpret the majority opinion it seeks by subtle argumentation to assail the legality of the action of the trial court in committing the petitioners, not on account of a lack of power, legitimately exercised, but by the interposition of a course of procedure pursued by the petitioners, based on a claim of ownership, which we have shown and will further show has no legal basis.
Having disposed of what we regard as matter extraneous to the disposition of this case, we come to a consideration of the facts vitally necessary to its proper determination. Repetitions, although they savor of prolixity, may be employed to give emphasis to the relevant facts which are as follows:
The Sheriff of Cole County held the prisoner under legal process; any property found on his person, therefore, the sheriff was authorized to take into his possession and it became thenceforth in the custody of the law and primarily subject to the State's lien for the purpose stated in the statute. Thus held, the owner was not authorized to dispose of the same by gift or otherwise. For a like reason the sheriff could not legally accept the property as a gift and thereafter assert ownership of it. The statute is plain and its meaning and purpose unmistakable. It is, in effect, as follows: A person charged with an offense and committed to jail, shall be searched and any money or property found in his possession shall be taken into custody by the sheriff and applied for the support of the prisoner while in confinement and to the payment of costs which may be adjudged against him. [Sec. 4119, R.S. 1919.] In Holker v. Hennessey,141 Mo. 528, this statute was construed with the resultant conclusion that property rightfully taken from a prisoner under the authority of the statute is in the custody of the law and is subject to the order of the court and while so held it is immune from attachment, execution or garnishment. This language declares in no uncertain terms the paramount nature of the State's lien. The trial judge, therefore, was well within the exercise of his power and regardful of the performance of his duty, under the law, in ordering the petitioners to surrender this property into the custody of the clerk of the court, which means nothing more than the continuance of the custody of the law as directed by the court. The reasonableness of the order, for a refusal *Page 34 to comply with which the petitioners are in contempt, is attested by its terms, which are as follows:
"Whereupon, the court orders and decrees, that the Sheriff, L.C. Withaup, W.C. Irwin, Sam Bushman and Irwin Bushman, deliver to the clerk of this court, the ring in question for safe-keeping for the legal owner thereof when the same is finally determined and the replevin suit as heretofore filed is finally settled and disposed of and that the said parties shall have time until March 5, 1928, to deliver the said diamond ring in question to the said circuit clerk of this court, or to show cause at that time why they cannot comply with this order."
This order recognizes, as it need not have done, the existence of the petitioners' claim to title and affords them ample opportunity to test the merits of the same subject to the satisfaction of the State's lien. This was more than they were entitled to, but of this they cannot complain, for however stable or flimsy may be their title, they are afforded an opportunity to have it determined in an orderly manner. It cannot be said, therefore, that the petitioners have been denied due process of law, or that any right to which they are entitled have been denied to them. Their contempt was flagrant and, committed as it was by officers of the court, inexcusable.
I am, therefore, of the opinion that the court's order of commitment was authorized and that the petitioners should be remanded to the custody of the sheriff. Gantt, J., concurs in this opinion.