State ex rel. Bartle v. Coleman

Rombaueb, P. J., delivered the opinion of the court. The relators, who are resident citizens of Franklin county, obtained an alternative writ of mandamus [473] against the defendants, who are the judges of the county court. The writ recites that there is a public bridge across, the Meramec river in said county, on a public road leading from the town of St. Clair to the eastern boundary line of the county; that said bridge is in an unsafe condition and in need of repair ; that the relators had petitioned the county court to repair said bridge, but it had declined and refused to do so, and declined to take any proceedings required by law to repair said bridge. The writ commanded the defendants to take such proceedings as the law requires touching the repair of public bridges, and repair the bridge or show cause, etc. The defendants made return to the writ admitting the character of the road and bridge as claimed, and that such bridge was out of repair. They farther admitted that the relators had petitioned the court to repair the bridge, but averred that the court had taken action on such petition, and upon full consideration and investigation of the matter, found and decided that the bridge could not be repaired so as to, be made safe and substantial, and a new bridge could not be erected at said place in a safe and substantial manner owing to the difficulty of making safe approaches; that thereupon the court ordered that no further repairs be made on said bridge, but immediately proceeded towards the erection of another bridge across said Meramec river, at a site three miles from the old bridge, where a bridge could be erected and maintained with safety, and greater economy ; that the new bridge thus about to be erected gives accommodation to the same section of the country as the old bridge did, and is connected by a system of roads with that section. The relators moved for a peremptory writ on the return, as not showing sufficient cause. This motion was overruled, whereupon the relators took issue on the return by reply, and the court, upon full hearing, denied a peremptory writ, and rendered judgment for costs in [474] favor of respondents. The relators thereupon sued out this writ of error. For the purpose of passing upon the questions of law arising, upon the record, it is sufficient to state that the evidence adduced by the respondents fully substantiates the allegations of the return, and tends to show that the respondents, as county judges, acted discreetly and for the best interests of the county. The sole question presented for our consideration is whether they are invested by law with any discretion in the premises, or whether the statute imposes upon them a duty to repair public bridges which they are bound to exercise, regardless of the expediency of the improvement; and whether such duty can be enforced by mandamus. A preliminary question to be disposed of is whether the writ of error lies to this court or to the supreme coiirt. The defendants in error claim it lies to the supreme court. (1) Because the proceeding, although nominally against individuals, is substantially one against the county; (2) because justices of the county court, in the exercise of their jurisdiction over roads, are state functionaries, it is thus claimed that in one view a political subdivision of the state, and in another, state officers, are parties to the litigation. Both these propositions have received a negative answer in State ex rel. v. The St. Louis Board of Health, 90 Mo. 169, and may be disposed of by a simple reference to that case. See also State ex rel. v. Gasconade County Court, 25 Mo. App. 446, which is to the same effect. The substantial question in the case arises upon the construction which must be placed on the following section of the statute concerning bridges : Section 4326: “ The county court shall, whenever it is necessary, without delay, make an appropriation to repair any public bridge in the county, and whenever any bridge shall be repaired, the like preliminary steps shall he had as in case of building a bridge, and the commissioners shall have the same powers, and proceed in like [475] manner, as the commissioner for building a bridge.” Tbe italics in tbe quotation are our own. Tbe relators contend that the law leaves no discretion whatever in tbe county court. They maintain that tbe words whenever it is necessary are synonymous with tbe words whenever it is oiot of repair ; that therefore tbe case is governed by tbe principle, that whenever an imperative duty is imposed on public officers by law, its performance may be enforced by mandamus, as has been frequently decided in this state. State ex rel. v. School Directors, 74 Mo. 22 ; State ex rel. v. Meyer, 80 Mo. 601; State ex rel. v. County Court of Gasconade, supra, and has been decided by us in tbe recent case of State ex rel. v. Baker, 82 Mo. App. 98. To this vibw we cannot accede, as it seems opposed to tbe context of other sections of tbe law on tbe same subject. Tbe words, “whenever it is necessary,” certainly leave tbe necessity to be determined by some one. Were it otherwise, we would be compelled to bold that tbe county court can be forced to repair a bridge, when, owing to tbe physical facts of tbe case, such repair is wholly impracticable, as seems to be tbe case upon tbe facts developed at tbe bearing of tbe case at bar. We cannot bold that the legislature intended a result so totally opposed to tbe interests of tbe community, as long as tbe section admits with equal reason of another and more rational construction. The view we bold to be tbe correct one gains additional strength by two considerations. In tbe next succeeding section, referring to bridges to be kept in repair by contract, • the words are, “ if any public bridge require repairing,” thus showing that tbe legislature used unequivocal terms in tbe proper pase. On ,the other band, tbe section under consideration requires that tbe like preliminary steps shall be bad in cases of repairs as in cases of building bridges. One of such steps is a preliminary estimate or bid, upon tbe receipt of which tbe county court may or may not in its [476] discretion make an appropriation under section 4317 of the law. This being so, it is not evident how a mandamus to repair could aid the relators, since the appropriation for such repairs is left to the discretion of the county court. We must therefore conclude that the words “whenever it is necessary” invest the county court with a reasonable discretion to determine the necessity of the repair. Courts have gone to great length in controlling the discretion of municipal authorities, where they have exercised such discretion in a manner grossly oppressive. Corrigan v. Gage, 68 Mo. 541; Halpin v. Campbell, 71 Mo. 493. We need not decide whether or no, upon a proper case made, the discretion of the county court in failing to repair a public bridge might not be so unjust and oppressive as to call for its review by the courts having supervisory control. It is sufficient, for the purposes of this case, to decide that, finding the county court invested with some discretion, and seeing no evidence in the record that the discretion was abused, we are not warranted to disturb the judgment denying the peremptory writ. Judgment affirmed. All concur.