50 Mo. 338 | Mo. | 1872
delivered the opinion of the court.
The plaintiffs sued out of the Circuit Court a writ of mañdamns against the defendants as judges of the County Court of Yernon county, commanding them to audit and pay their accounts for services and expenses as a sheriff’s posse in protecting thé board of registration in the performance of their duties under the registration act of 1868 (Wagn. Stat. 1157, § 36), or show cause, etc. The accounts were shown to have been presented and rejected; they were severally adjusted by the Circuit Court^'and a peremptory writ was ordered, from which defendants appehl. ]
We need only consider the right of the plaintiffs to resort to this remedy. Mandamus is one of those extraordinary writs that will issue only when the applicant has no other specific remedy. (State v. Howard County Court, 39 Mo. 375; Moses on Mand. 14. ) It is never resorted, to to enforce the payment of a ffebt when it can be collected by suit, unless the tribunal having 'jurisdiction refuses to act, in which case' the order will be'not to render a specific judgment, hut to proceed with the cause.
The writ is often issued to the auditor of State, requiring him to audit demands against the State that have been provided fob by law. The State cannot be sued, and the claimant has no other remedy. So mandamus may be properly issued to judges of County Courts to perform their duty, when no judgment can be obtained against the county. In The State v. Saline County Court, 48 Mo. 390, the obligation to pay the bonds then under consideration was not upon the county of Saline, or upon any municipal or quasi corporation that could be sued. The statute pointed out a specific mode by which they could be met, to-wit: by the assessment of taxes upon a certain section of the county; and the only specific remedy the holder of the bonds could have would be by mandamus to compel the assessment. So in The State v. Bollinger County Court, 48 Mo. 475, the relator had no claim upon the county, but only upon á certain fund in the custody of the County Court. The county, therefore, could not have been sued. In The State v. Treasurer of Callaway County, 43 Mo. 228, the claim enforced by mail-
In relation to bonds of cities and counties, issued under acts which provide especially for the assessment of taxes to meet them, but without express authority for this writ, the decisions in other States have been conflicting. In Kentucky it is held to be an appropriate remedy to compel the assessment, although no judgment has been obtained. (Maddox v. Graham et al., 2 Metc. Ky. 56; 11 B. Monr. 154.) So in Ohio. (State v. Commissioners, etc., 6 Ohio St. 280.) In New York, where a suit can be properly instituted, the prevailing doctrine is that the claim must be first reduced to judgment, though there does not seem to be perfect harmony in the cases. (See The People v. Supervisors, etc., 10 Wend. 363; Ex parte Lynch, 2 Hill, 45; The People v. Supervisors, etc., 11 N. Y. 563; The People v. Mead, 24 N. Y. 114.) So in Iowa. (Coy v. City of Lyons, 17 Iowa, 7.)
I have not examined the reports of all the States to see what is the general holding in relation to municipal bonds issued as above, nor does it matter so far as the present case is concerned. All agree to the general principle that if the creditor has another adequate and specific remedy, the writ of mandamus will be denied, although they may and do differ as to whether an ordinary suit in a particular case is such remedy.
It is not pretended that a private citizen holding an ordinary claim against a city or county can have it adjudicated under a writ of mandamus. It must be first reduced to judgment, arid if then the proper authority refuses to provide for its payment, the creditor may ask for mandatory process. I do not see how the present relators stand in any different position. They claim
the judgment of the Circuit Court will be reversed and the petition dismissed.
