23 Mo. 449 | Mo. | 1856
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
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,
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
' The judgment on the demurrer is for the defendant, and the peremptory mandamus srefused.