# State ex rel. Barker v. Wurdeman

> Supreme Court of Missouri · February 10, 1914 · 254 Mo. 561

URL: https://www.frixlaw.com/law-library/cases/8018634

## Case

- **Full name:** THE STATE ex rel. JOHN T. BARKER, Attorney-General v. GUSTAVUS A. WURDEMAN, Judge
- **Court:** Supreme Court of Missouri
- **Decided:** February 10, 1914
- **Citations:** 254 Mo. 561; 163 S.W. 849; 1914 Mo. LEXIS 230
- **Precedential status:** Published
- **Opinion:** Concurrence by Graves
- **Judges:** Andfaris, Bond, Brown, Faris, Graves, Lamm, Views, Walker, Woodson
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8018634

## Opinion text

GRAVES, J.
I concur in all of this opinion except that portion which discusses the constitutionality of the law which creates the excise commission for St. Louis county. As to the conclusion reached in this portion of . the opinion I simply desire to express no opinion .at this time nor in this case. This because it is not necessary to a determination of the instant case. In the instant case petitioner’s petition for the writ of habeas corpus is based on the sole ground of the invalidity of this Act of 1913, He does not challenge the validity of the law under which he was actually arrested and in legal custody. He, on the other hand, challenges the validity of a law which may be incidentally involved in the trial of his criminal charge, but which itself is not at the base of such criminal charge The writ of habeas corpus may, and has been issued, *580 where the validity of the law forming the basis of the criminal charge is attached in the application for the writ, but it is going too far to say that the judge trying a habeas corpus case can adjudicate the validity of laws not at the basis of the criminal charge. Petitioner in this case only sought such an adjudication. He so limited the matter in his petition for discharge. It was but a shrewd attempt to have litigated a question which cannot be litigated in a habeas corpus case, and in so far as my brother’s opinion touches this question, I most heartily concur.
That question disposes of this case without further ado. Let the validity of the law urged be decided in a case wherein it comes up as a vital issue, so that our pronunciation thereon may be more than mere obiter. My brother reasons well upon the extraneous law, and it may be when presented in a proper case that I will concur in his views, but I prefer to express no opinion now. I, therefore, concur in the result reached, and in the portion of the opinion as above indicated.
Faris, J., concurs in these views.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8018634. Public record. Not legal advice.