Phelps County v. Bishop

Bniss, Judge, delivered the opinion of the court. From the petition and return to the writ of certiorari it appears that the defendant, Bishop, presented a claim to the County Court for compensation for certain lands that he claim 8 should have been conveyed to him in arranging the location of the county seat. The matter was prosecuted precisely as though the county had been sued in the Circuit Court, except, inasmuch as the County Court itself represented the county, there was no service of process. But there was a petition, answer, motion to strike out an insufficient allegation, and a regular judgment. With the return of the writ and proceedings comes a certified copy of an order of the court stating that the matter is prosecuted [70] without its consent or authority, and requesting the attorney-general to appear and dismiss it. So we have before us a proceeding brought up by certiorari, in the name of the county, to review the action of the only persons who can represent the county, and prosecuted here against their will. A writ of certiorari is directed to an inferior court or tribunal whose proceedings are not according to the course of the common law, but the action to be reviewed must be judicial in its character. (In the matter of Saline County Subscription, etc., 45 Mo. 52.) The auditing of a demand against the county by the County Court is not a judicial proceeding, and the entry of its allowance or rejection is not a judgment. The county judges are the agents, the representatives, of the county, and it is their duty to audit and pay all just and lawful claims against it; and, in performing that duty, they act precisely as would the agents of a private corporation. For that purpose they do not constitute a court in its proper sense, and the entry upon the record of their proceedings is not a judicial record. If a specific claim be rejected, the county may be sued upon it, and its rejection is no res adjudícala. This matter is incidentally considered in Marion County v. Phillips, 45 Mo. 75, as well as in the “ Saline County Subscription,” and we have no reason to change the conclusion there ariived at. Much of the argument of counsel was devoted to the propriety of the action complained of in allowing the claim of Bishop. It does not become necessary to give any opinion upon that subject, but perhaps we should say that the County Court has no right to allow any claims not warranted by law. It should rigidly guard the treasury, and should not order the payment of money upon any notions its members may have of what may be fair and just, or what may subserve the public interests. If the judges abuse the trust reposed in them, the tax-payers of the county are not without remedy, either by holding them to their proper responsibility or by restraining their proceedings. The writ is quashed. The other judges concur.