State ex rel. West v. Justices of the County Court

Holmes, Judge, delivered the opinion of the court. This is a suggestion accompanied with an exemplification of the record of the County Court of Clark county, filed in this court by the relators, supported by affidavit, and praying for a writ of prohibition against the justices of the County Court of said county, and against the commissioner appointed by the court to select a site for the seat of justice of said county, and the contractor with the court for the erection of county buildings at the place selected, to restrain them from further proceedings in the matter of a removal of the seat of justice of said county, on the ground that the court was exceeding its jurisdiction. The case is submitted upon demurrer to the petition, from which (together with the exemplification of the records) it appears that a petition signed by some of the citizens of the county had been presented to the County Court in June, 1866, upon which the court, on the 2d day of October, 1866, made an order submitting the question of a removal of the seat of justice to the voters of the county at a general election to be held on the 6th of November following; that a vote was taken accordingly, and, there being a majority of the voters in favor of the removal, the court proceeded to make orders appointing a commissioner, appropriating money, and contracting for the erection of county buildings at — 48 — the place selected ; and that the relators, as citizens of the county and owners of real estate in the town of Cahoka, then the seat of justice, appeared and moved the court to set aside and vacate these orders, and that their motions were overruled. All these proceedings on the-part of the court took place after the general statutes of 1865 went into operation, though the petition had been presented before. The defendants contend that tlie proceedings were to be governed by the previous statute of 1855. This position cannot be sustained. The statute of 1865 on this subject was in force when the first action of the County Court was had upon the petition. This was a new statute covering the whole of the same subject matter of the previous act, which was thereby suspended and repealed. The former special act providing for a change of the seat of justice from Waterloo to Cahoka had been exhausted by the completion of the removal made under it. The proposition for still another removal fell under the general statutes. The act of 1865 (G. S. 1865, ch. 86) gave the County Court power to proceed upon a petition of one-fourth of the voters of the county to order the question of a removal of the seat of justice to be submitted to the qualified voters of the county at the next general election, in the manner therein specified,and to appoint five commissioners to selecta site for a new seat of justice, if it should appear that “ two-thirds of the legally registered voters of the county” were in favor of such removal. The commissioners were to report their proceedings to the Circuit Court, accompanied with the evidences of the title to the land selected for such site, and the judge of that court was to certify his approval of the title to the County Court; and thereupon, if the court should believe that the most suitable place had been selected, it was then to become “ the permanent seat of justice of the county.” It is clear that the County Court did not proceed in accordance with the provisions of this act. A majority only, — 49 — and not “ two-thirds of the legally registered voters,” as expressly required, had voted for the removal. The proceedings were in other respects in direct contravention of the only law which gave them power over the subject. They were acting in an administrative capacity, and as the agents of the county, and were bound to pursue the authority given by the statute, and to act within the scope given by their special and limited power; and all persons dealing with the court, thus acting in behalf of the county, were bound to know the law that conferred the authority—Wolcutt v. Lawrence Co., 26 Mo. 272; Sheeley v. Wiggs et al., 32 Mo. 398. A more difficult question arises whether a prohibition is the proper remedy in such case. The duties of the County Courts are partly judicial, and in part merely administrative—State v. Cooper Co. Ct., 17 Mo. 507. In the exercise of that portion of their jurisdiction which is judicial in its nature, as in matters of probate, accounts, guardians, minors, lunatics, apprentices, and the like, in which an appeal is allowed to the Circuit Courts, the County Courts are a branch of the judiciary of the State, and as much State c'ourts as the Circuit Courts—Miller v. Iron Co., 29 Mo. 122. And if the court were exceeding its proper jurisdiction in matters of this kind, or were proceeding judicially upon a misconstruction of a statute involving a question of jurisdiction in any suit pending between parties (though the county might be one of the parties), there is no doubt that a prohibition might be granted, at the discretion of the court, at the instance of any one of the parties, or even of a stranger to the suit—Thomas v. Mead, 36 Mo. 232; Howard v. Pierce, 38 Mo. 296; Gould v. Gapper, 5 East, 345; Tylstra v. Charlestown, 1 Bay, 382; Washburn v. Phillips, 2 Metc. 296; Ex parte Smith, 23 Ala. 94; People v. Supervisors, 1 Hill, 201; Reese v. Lawless, 4 Bibb, 394; 2 Litt. Prac. 312. But the office of a prohibition is to prevent courts from going beyond their jurisdiction in the exercise of judicial power, and not of ministerial or merely administrative function ; and in a case where the court errs on a question of — 50 — jurisdiction, or in the construction of a statute, in the exercise of such judicial power as an inferior court. It will not lie to restrain a ministerial act, as the issuing of an execution, or the levying of a tax to repair county buildings (Ex parte Branolacht, 2 Hill, 367; Clayton v. Heidelberg, 9 Sm. & M. 623); nor against ministerial officers, such as tax collectors, commissioners to locate a county seat, or the like ; nor to restrain the issuing of a commission by the Governor. —State v. Allen, 2 Ired. 183; People v. Supervisors, 1 Hill, 195; Ex parte Blackburn, 5 Ark. 21; Gill v. Taylor, 4 McCord, 206. In these cases there is no question of a conflict of jurisdiction between different courts in the administration of justice, and there are supposed to be other adequate remedies for any injury that may be done. In the case of the King v. Justices of Dorset, 15 East, 594, the court refused a prohibition to restrain the justices from pulling down an old bridge for the purpose of building a new one, as creating a nuisance, and said that such an application of the writ had not been recognized in modern practice, where there was another remedy by indictment, though some ancient authorities were cited in support of it; and we have found no authority in this country that can be relied on for the application of the writ to a case of this kind. Even where a prohibition might be a proper remedy, the granting of it is subject to the discretion of the court. In Tetherow v. Grundy Co. Ct., 9 Mo. 117, it was decided that a writ of error would not lie from an order of the County Court appointing commissioners to locate a permanent seat of justice, and it was distinctly intimated as the opinion of the court that such a proceeding was not a civil suit depending between parties ; that such an order was not a final judgment on which a writ of error would lie; and that the plaintiff was not to be considered a party to the proceeding as a suit; but it was said that “ the Circuit Courts have a superintending control over the County Courts, and, if they exceed their powers or act contrary to their duty in proceedings in which writs of error will not lie, there are — 51 — modes by which they can be restrained in conformity to the usages and principles of law.” The court did not attempt to point out what those remedies were, nor is it necessary that we should undertake to indicate them now. We may observe only that one mode of exercising that control is by the writ of mandamus in cases where that writ will lie; and if the court should exceed its powers in the exercise of that part of its jurisdiction which is judicial in its nature, a prohibition would unquestionably be a proper remedy. In respect of the commissioner and contractor, it is apparent from the authorities that this writ must be refused. It is equally clear that the functions of the justices of the County Court in this matter pertain to their administrative capacity, and not to the exorcise of judicial power. The statute confers upon them a 'limited and special authority in proceedings of this nature. They derive their whole power from the statute. It is conferred upon them as representing the people of the county, whose agents they are in this business. The power given is made to depend upon the consent of at least two-thirds of the legally registered voters of the county, and this consent is to be manifested in the mode prescribed by the act, and in no other way. It is not imperative upon the court to adopt the place selected by the commissioners, though the title deeds be approved by the judge of the Circuit Court, unless they believe the most suitable place has been selected; this decision upon this matter, in the exercise of the discretion thus conferred, is to be evidenced by an order entered of record; and then the place so selected becomes the permanent seat of justice of the county. This is a direction as to the exercise of a power given by the statute, and the power must be exercised within the limits of the authority conferred and under the conditions imposed by the act. It is plain that the power given has not been pursued the conditions have not been complied with; the consent of the voters has not been obtained in the manner prescribed ; and it must follow that the pro — 52 — ceedings were without the authority of law, and are therefore null and void. A prohibition not being the proper remedy, the demurrer will be sustained and the writ denied. The other judges concur.