61 Mo. App. 173 | Mo. Ct. App. | 1895
This is a proceeding by mandamus to compel the justices of the county court of Pike county to appoint a board of commissioners to assess the damages arising out of the opening of a proposed public road. The return is in the nature or a demurrer, which the circuit court sustained. The appellants declined to amend, and the proceeding was dismissed.
The appellants were petitioners for the opening of a public road. The petition for mandamus makes the necessary averments of the various steps necessary and leading up to the presentation of their petition to the
The petition then proceeds to state the grounds of complaint, as follows:
“Plaintiffs further say that upon the filing of said report in said court said petitioners agreed, then and there, and offered and proposed to said court, to pay the costs of all bridges, grading and culverts that might be needed upon said road, so that the building and construction of the same should not cost the county of Pike $1, and requested and demanded that said court appoint by order of record three disinterested freeholders of said Pike county, who were not interested or of kin to any of the parties asking damages on account of the location of said road, to act as a board of com*176 missioners to view the premises, hear complaints and assess the damages to said landowners who had not relinquished the right of way, as provided by law.
“Plaintiffs say that, notwithstanding said petitioners had deposited and paid into the county treasury to the use of said landowners the probable amount of damages to said landowners as fixed by said court, and were ready and willing, and proffered to pay any damages in excess of the amount deposited in the treasury, as aforesaid, that might be assessed in behalf of said landowners for the right of way for said road by aboard consisting of three commissioners, as provided by law, and notwithstanding they were ready and willing and proffered to pay the cost of the construction of all bridges, culverts and grading needed on said road, without any expense to said county of Pike, said county court did, at said regular May term and on the second day thereof, it being the eighth day of May, 1894,.illegally and arbitrarily, and without right or authority, refuse to appoint, by order of record, three disinterested freeholders of said county of Pike, not interested or of kin to any of the parties asking damages on account of the location of said road, to act as a board of commissioners to view the premises, hear complaints and assess said damages; and did, illegally and arbitrarily, dismiss said proceedings in said court on the grounds, as recited in an order of said court, that said road was not of public utility.”
There are some informalities in the present record to which we deem it advisable, to allude, although no mention is made of them in the briefs. The alternative writ is directed to the county court, and it does not set forth the averments of the petition. The writ should have run against the justices of the county court by name, and the writ should have contained, by way of recital, the allegations of the petition. The reason of
The theory of the petition is that, under the facts as stated, it became the absolute duty of the county court (section 7799 of the Revised Statutes of 1889, as amended, supra) to appoint a board of commissioners to ascertain and settle the land damages, and that, upon the final ascertainment of the amount and the payment thereof by the petitioners, and the payment by them of the further sum necessary for the construction of bridges and culverts, the further duty would devolve on the county court to order the road established and opened.
Section 7799, as amended, reads as follows: “But, if it appear that any person or persons, through whose lands such proposed road or change of road should run, have failed or refused to relinquish the right of way, and are not willing to take the amount of damages offered them by the court or petitioners, and if it further appears to the court that said proposed road of change of road is of such great public utility as to warrant the opening and establishing, or change, at the expense of the county, the county court shall appoint by order of record three disinterested freeholders of the county, who are not interested or of kin to any of the parties asking damages on account of the location or change of said road, to act as a board of commissioners to view the premises, hear complaints and assess damages, who shall receive for their sendees two dollars per day for each and every day that they are actually employed in the discharge of their duties. The said commissioners, after having been duly sworn to faithfully perform their duties, shall verbally notify the resident owner
The succeeding section (7800), as amended, reads as follows: ■
“Upon the proceedings had in the next preceding section, or upon the report of the commissioners therein*179 provided, if the parties in interest fail to file written exceptions thereto, the court shall pay the damages, or, if the court refuses to pay the damages, and the petitioners have paid the damages, the court shall order the road established and opened, or the' change made, and the land so condemned or relinquished as aforesaid shall be forever considered and adjudged a public highway until changed or annulled by law, and the report of the road commissioner and of the commissioners to assess damage shall be recorded by the county clerk in a book kept for that purpose.”
It is plain from the reading of section 7799 that the important duty therein imposed on justices of county courts is judicial and not ministerial in its character, and, being so, it is well settled that the manner of its performance can not be interfered with in mandamus proceedings. The report of the road commissioner showed that the landowners would n o accept the amount of the previously estimated damages, and that their demands were far in excess of the amount deposited by the petitioners. The report also showed that, if the road was opened, an additional expense of $1,300 for bridges would have to be incurred. It then became the duty of the justices of the county court, before proceeding farther, to judicially determine whether, under the circumstances, the proposed road was of such great public utility or necessity as to warrant the expense of opening and maintaining it. The matter was so considered, and the decision was adverse to the opening of the road. It could make no difference that the petitioners proffered to pay all damages and the estimated cost of the bridges. The burden of maintaining the road would have been on the county, and it was the duty of the county justices to consider tha fact in determinihg the public utility of the road.
The appellants rely on the case of Strahan v.
Again, the facts in the case at bar are entirely different. Here the damages are uncertain and unascertained, and the petitioners claim that they have a right to compel the county court to proceed under section 7799, supra, and incur the expense of a long litigation upon their bare promise that they would pay whatever damages were finally assessed. Had the county court acted and relied on such a promise, it would have been clearly outside of the powers of the court as defined by the statute, and manifestly against the interest of the county at large.
It follows that the judgment of the circuit court must be affirmed.