State ex rel. Alexander v. Ryan

Lewis, J., delivered the opinion of the court. This is an application for mandamus. The petition shows-that, in certain proceedings before the land commissioner, for the opening of California avenue, in the city of St. Louis, in which the relator was a party interested, the latter being-dissatisfied with the judgment of the commissioner, and having in all respects complied -with the requirements for talcing an appeal to the Circuit Court, demanded of the commissioner a transcript of said proceedings, to be filed with the clerk of' the Circuit Court, for the purposes of the appeal; that, although the relator duly tendered to the commissioner the-fee for filing said transcript, the said commissioner refused, and still refuses, either to file said transcript or to furnish the same, so that it may be filed by the relator. The respondent’s answer to the alternative writ, after-denying generally that any lawful cause for a mandamus is shown by the petition, states, in effect, that respondent is-ready and willing to furnish said transcript whenever the relator shall q>ay to the city of St. Louis the reasonable cost of making it; that respondent is a salaried officer, not-entitled to charge fees for any services; that he charges none in this instance; but it is unreasonable and unlawful for the city of St. Louis, at her own cost, to furnish a transcript to the relator, for his appeal, without being paid the actual expense incurred in preparing the sanie. To this return the relator filed a demurrer, which the-court overruled. The relator refusing to plead further, the peremptory writ was denied, and final judgment rendered for the respondent. The law under which the appeal was taken is as follows : “ Upon final judgment of the land commissioner, in every case in which exceptions are taken, an appeal may be taken to the Circuit Court of St. Louis county, within ten days305 after the rendition of the same, in the mode and manner, and with the requirements, so far as applicable, of'an appeal from the judgment of a justice of the peace in the county of St. Louis,’’ etc. Sess. Acts, 1875, p. 322, sec. 3. For the purpose of showing that the relator, in applying for a mandamus, has mistaken his remedy, respondent refers us to the following provision in the law concerning justices of the peace (Wag. Stat. 849, sec. 10) : “ If the justice fail to allow an appeal in the cause, when the same ought to be allowed, such Circuit Court, or other court having jurisdiction of such appeal, on such fact satisfactorily •appearing, may, by rule and attachment, compel the justice to allow the same and to return his proceedings in the suit, together with the papers required to be returned by him.” We do not think that this law was intended to apply to such a case as the present. The clerical act of making out a transcript is no part of the process of taking an appeal. It is performed only when the appeal has been already perfected. In the case before us it is not questioned that the appeal had been fully completed and granted by the commissioner when he refused to furnish the transcript. It will be apparent, upon an examination of the two statutory provisions above quoted, that such a state of facts is not literally within the terms-of either. Not perceiving that their intendment is to any different-effect, we are satisfied that mandamus was the relator’s appropriate remedy. No provision of law authorized the city of St. Louis to charge fees for the clerical labor required on this occasion. The duty of making out and- filing the transcript in every case of perfected appeal is as emphatically laid upon the land commissioner as is any other pertaining to his office. He here admits that his salary is all the compensation required by himself for the performance of every duty ; but he undertakes to speak in behalf of the city of St. Louis. The city, speaking for herself, through her ordinances or [306] otherwise, has never made any such claim as is here preferred. She demands no return for the salary paid to the land commissioner, beyond the benefits derived by her citizens from his official services. The right of appeal from his decision is guaranteed by law. , The same authority, in requiring an affidavit and bond, deems these sufficient to guard against a frivolous use of the privilege, or an unjust infliction of delays and expenses against the city. It may be, as suggested, that, in certain contingencies, a very large number of appeals will be invited by this interpretation of the law. But it is a true one, nevertheless. We are here to declare the law as it is. If it be unwisely framed, or ihconvenient in operation, the remédy must be applied by another authority. We are of opinion that the alternative writ and the return thereupon show a complete case for a peremptory mandamus, according to the prayer of the relator. The judgment of the Circuit Court is therefore reversed, and a peremptory mandamus will be issued from this court. Judge Gantt concurs ; Judge Bakewell not sitting.