54 Mo. 391 | Mo. | 1873
delivered the opinion of the court.
Dobbins and three hundred other citizens of Eeynolds county, applied to the Circuit Court of that county for a mandamus on the county justices, to appoint commissioners to select a site whereon to locate the seat of justice.
To the writ, which was issued, the County Court returned that at the general election held on the 5th of Nov., 1872, the proposition to remove the seat of justice of Eeynolds county from its present location, did not receive “ two-thirds of the legally registered votes of Eeynolds county,” nor were two-thirds of the legal voter's of said county polled at said election as appeared by the returns of said registration and election; that at a registration held for said county within 60 days preceding
As a farther answer, the court averred, that there had not been raised by a tax, sufficient money from the people to pay for all the lots and improvements sold by the county at Oentreville, the present seat of justice, which had been located for twenty-eight years past, and was within five miles of the center of Reynolds county, and that no petition for the removal of said county seat had been presented within ten years after said seat of justice had been located.
This return on demurrer, or rather on a motion to strike it out and disregard it, was held insufficient, and a peremptory mandamus was awarded. To this judgment a writ of error was taken.
A motion is made in this court to dismiss the writ of error, because there was no final judgment in the case, and to sustain this, various authorities are cited to show that a writ of error only lies on a final j udgment, and that this judgment is ,not final.
But there is no force in this objection. The judgment of the Circuit Court ordering the peremptory mandamus is the end of the case, so far as that court is concerned. Its jurisdiction is certainly exhausted, and the question it decided is gone forever from its control. That a proceeding is collaterally going On, still pending in the County Court in regard to the establishment of the county seat of Reynolds county is a fact, which does not impeach the finality of the judgment of the Circuit Court on the mandamus. What is meant by a final judgment is, that it is final so far as the court which rendered it is concerned, and that court is one to which a writ of error will lie to this court.
It has been frequently held by this court that in proceedings for partition, an appeal would not lie from a judgment quod partitio fiat, because it was virtually interlocutory in its
The question remains whether the County Court in deciding on the construction of the statute regulating their action in regard to this matter was wrong; assuming that the rule laid down in Castello vs. St. Louis county, 28 Mo., 259, is correct, and that where the inferior court, on a preliminary question arising on a statute, misconstrues it, this court may compel by mandamus the inferior court to proceed with the case.
The constitution of this State (Art. 1Y, § 30) says: “ The General Assembly Shall have no power to remove the county seat of any county, unless two-thirds of the qualified voters of the county, at a general election, shall vote in favor of such removal.”
The statute on the subject (Wagn. Stat., 405, § 22) says, after providing for an election : “ If it shall appear by such election that two-thirds of the legally registered voters of said county are in favor of the removal of the county seat of such county, then the County'Court shall appoint five commissioners,” etc.
In this case, as it appears from the return of the County Court to the mandamus, the registration immediately prior to the election showed that there were in Reynolds county 694 voters, that 547 of these duly registered voters actually voted
There is no doubt that in general, where an election is held to determine the choice of a candidate or the determination of some question of public policy, the plurality required by the law, whether it be a bare majority or two-thirds or three-fourths, is determined by the result of the vote cast, without regard to the number of voters declining to vote, and this is upon the ground that the failure to vote is assumed or may be presumed to be an acquiescence in whatever result may be produced by the action of those who feel sufficient interest in the election to go to the polls and vote, and for the further reason that in most cases there is no mode by which the number of absentees can be ascertained. The decision of Lord Mansfield in Rex vs. Foxcroft, 2 Burr., 1017, is therefore rightly followed in many cases in this country where it might be properly applied. But the decisions in England, or in the other States, are very unsafe guides, where we are called upon to construe a constitutional or statutory provision of our own State. If the language is plain and unambiguous, its requirements cannot be set at naught upon the strength of decisions elsewhere on statutes or constitutions, essentially variant or couched in very different terms:
Our constitution, in regard to the proposed removal oí county seats, it seems to me, hardly admits of two constructions. It prohibits the legislature from removing them, unless two-thirds of the qualified voters shall, at a general election, vote for the removal. The words do not imply an ac
We are referred, however, to two decisions of this court, (Bassett vs. The Mayor, &c., 37 Mo., 270, and the State vs. Binder, 38 Mo., 450) which are supposed to maintain views conflicting with this opinion. We should hesitate to interfere with previous adjudications of this-court, if on the faith of such decisions, property had been acquired or money invested. The views of the court on this subject have already been expressed in the case of Smith vs. Clark Co., ante p. 58. But a reference to these eases will show that neither of them arose on the construction of a provision of the constitution or on the subject matter now under consideration. The act of the legislature referred to in the case of Bassett vs. The May- or, &c., required the question of borrowing money to be submitted to a vote of the qualified voters of St. Joseph, and required two-thirds of such votes to sanction the same. It appeared that there was no registration of voters in the city, and the only guide to determine the number of qualified voters was the result of the last electionvwhicli preceded the one in question, and according to that there were onty 338 voters in the city, and at the election in controversy, 336 votes were in favor of the loan, and only 58 votes against it. In the case of the State vs. Binder, an act of the legislature, authorized certain municipalities to permit, the sale of liquors on Sunday whenever authorised by a.majority of the legal
In none of these cases, however, was there any examination of, or construction given to the precise language of the constitutional provision now under consideration. The two eases last named were upon temporary acts of legislation, in which a construction either way was not of importance, as a subsequent legislature could readily do away with any inconvenience which might arise from incorrect or unacceptable constructions.
The present case, however, suggests very different considerations. The question of removing county seats was regarded by the framers of our constitution, as of sufficient importance to require very stringent provisions in that instrument, and an examination of the laws in force on this subject, at the time of the adoption of this new constitution, will show the great importance of requiring a strict compliance with its provisions.
It will be observed, that the return in this case shows — and the facts stated in it are admitted — that the county seat of Beynolds county was permanently located in 1845, twenty-eight years ago, and no attempt has been made to remove it to another place till the present movement; that it is located also within four miles of the center of the county — and no tax has been levied to pay for the lots or improvements in the present county seat — for the constitution now forbids it.
At the time this location was made, and from that time till
The concluding clause of the section of the constitution which has been heretofore copied, says: “No compensation or indemnity for real estate or the improvements thereon, affected by such removal, shall be allowed.”
Thus it will be readily seen that questions of vast importance and presenting some difficulty, may arise in removals of county seats, such as the one in the county of Reynolds. No authority is needed to sustain the proposition that constitutions cannot impair contracts or divest vested rights any more than legislative enactments, and the question will arise whether any vested rights will be disturbed, in case a bona fide vote of two-thirds of the people of the county shall favor the contemplated removal, without any attempt at compensation. The question is made and presented by the record in this case —but it has not been investigated nor is it intended to intimate any opinion on the subject — as the decision of the point already examined disposes of the case..
There is no dofibt that these municipal corporations, such as counties, are subject to the will of the legislature, and may be altered or abolished at pleasure — and that county seats may be changed, notwithstanding previous laws declaring them perpetual — but a legislature may make contracts as well
The judgment of the Circuit Court is reversed.