33 Mo. App. 470 | Mo. Ct. App. | 1889
delivered the opinion of the court. The relators, who are resident citizens of Franklin county, obtained an alternative writ of mandamus
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
Judgment affirmed.