Dunklin County v. District County Court of Dunklin County

LEONARD, Judge, delivered the opinion of the court. 1. The defendants having put, in their answer to the alternative mandamus, we proceed to consider the case as upon a demurrer to it, and the first remark we have to make is that this is not an appropriate remedy for the party, even if he be entitled to relief. The command of the writ is that the Dunklin district [454] county court “ vacate their order selling to the Cairo and Fulton railroad company 100,000 acres of swamp lands of the county, and appointing a commissioner to make the conveyance in payment of the stock subscription of the county to the road ; and that the court and all others desist from carrying their said order into executionand of course the question is, whether this relief can be had by the writ of mandamus. This court has express authority, under the constitution, to issue this and other original remedial writs, and to hear and determine the same ; but in what cases we may issue them has not been prescribed in the constitution itself, nor by our written law, otherwise than by the adoption of the common law, which defines the class of cases to which they are respectively applicable. 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 the court has previously determined that it is the duty of such tribunals or other person to perform. It issues in England^only out of the King’s Bench, the highest court in the kingdom, and was introduced, it is said, in order to prevent disorder from a failure of justice or defect of police, and is therefore granted only in cases when the law has provided no specific remedy, and in justice and good government there ought to be one. It does not lie to correct the errors of inferior tribunals by annulling what they have done erroneously, nor to guide their discretion, nor to restrain them from exercising power not delegated to them; but it is emphatically a writ requiring the tribunal or person to whom it is directed, to do some particular act appertaining to their public duty, and which the prosecutor has a legal right to have done. We could not therefore, by means of this writ, correct the errors or control the discretion of this tribunal in the discharge of an administrative duty, even if we had the power to do so. But the parties have argued the whole matter, and desire our opinion upon all the questions involved ; and as it may be a matter of public interest that our opinion should be known, we shall not [455] withhold it. These questions are, whether, under the several acts of the legislature upon this subject, the district county court had authority to make the sale complained of, and, if the authority was expressly given by these acts, whether it was competent to the state legislature, in view of the trust annexed to the grant, to authorize such a disposition of the property. 2. This district county court was established by the act of 1st March, 1855, (Sess. Acts, 1855, p. 474, 475,) which provided that it should “ possess all the powers and perform all the_ duties that the respective county courts now possess or may perform in the counties of Stoddard, Dunklin and Butler ;” and by the general law (R. C. 1845, tit. Courts, p. 382, § 15), all county courts have the control and management of the property, real and personal, belonging to the county, and full power and authority “ to sell and to cause to be conveyed any real estate, goods or'chattels belonging to the county, appropriating the proceeds of such sale to the use of the county.” By the act of the 2Sd of February, 1853, (Sess. Acts, 1853, p. 108,) the swamp lands in the counties of Dunklin, Stoddard, Butler, and certain other south-eastern counties, are donated to these counties respectively, upon the terms and provisions of the act entitled “ An act donating certain swamp and overflowed lands to the counties in which they lie,” approved March 3d, 1851 ; and by this act (Sess. Acts, 1851, p. 239) the swamp lands in the other counties are donated to them respectively for the purpose of reclaiming them according to the provisions of the original grant, and for this purpose they are to be sold under the orders of the county courts, and the nett proceeds, over and above what may be necessary to drain them, are made part of the county common school fund ; and under the general railroad law of 1851 (Sess. Acts, 1851, secs. 29, 32) the county courts are empowered to subscribe stock, in behalf of their counties, in railroad companies, and when any county has swamp land under the-grant of the state, the county court is expressly authorized to sell the same in order to pay its railroad stock subscription ; and by the act of 7th December, 1855, (Sess. Acts, [456] 1855, p. 353,) it is made the duty of the county courts of Dunldin, Stoddard and certain other south-eastern counties, whenever a majority of the voters petition them respectively to that effect, to transfer alternate tracts-of their swamp lands to the Iron Mountain or Cairo and Fulton railroad, “ at not less than one dollar per acre, payable in the stock of the company.” Under these several statutes, it is manifest that this county court had authority to dispose of the lands as they have done, and the only remaining question is, whether it was competent for the legislature of this state to authorize such a disposition of them. 3. By the act of Congress of 28th September, 1850, (9 U. S. Stats. 519,) the terms of the grant to the state of Arkansas are, “ to enable the state of Arkansas to construct the neces-. sary levees and drains to reclaim the swamp and overflowed lands therein,” and, by a subsequent section of the same act, it is declared that the provisions of the act are extended to every other state in which such lands may be found. The original grant, made by the state to the counties, was in order to execute this trust, and it is supposed that the trust is fastened upon the lands, so that they can not be disposed of by the state for any other purpose. This, however, is not’correct; the trust reposed by the United States is in the state of Missouri; it is a personal trust in the public faith of the state, and not a property trust, fastened by the terms of the grant upon the land itself, and following it into whose hands soever it may pass. It is proper, however, here to remark, in vindication of the state, that the original grant by the United States contemplates, ol course, a sale of the land, in order to render it available for the purposes of the trust, and it. is not to be supposed that this state will be guilty of a breach of her good faith by applying the stock for which the land is sold to any other purpose, without the consent of the United States. But however that may be, it is a matter exclusively within the control of the legislature. No private rights of property are invaded, and we have no authority to interfere in the execution of the [457] trust.’ The grant of the sixteenth sections in the state of Michigan was to the state for the use of schools, and in Cooper v. Roberts, (18 How. 181,) the Supreme Court of the United States,‘speaking in reference to the validity of a sale of these lands, made under the authority of the state, without the consent of Congress, said : “ The trusts, created by these compacts, relate to a subject certainly of universal interest, but of municipal concern, over which the power of the state is plenary and exclusive, in-the present instance the grant is to the state directly, without limitation of its power, though there is a sacred obligation imposed on the public faith.” In Long & Long v. Brown, (4 Ala. 622,) the Supreme Court of Alabama decided that a sale of the sixteenth sections, under a law of the state, was valid in point of law, without the assent of the United States, although, in order to preserve the public faith, the legislature had previously procured such consent. ' The judgment on the demurrer is for the defendant, and the peremptory mandamus srefused.