151 Mo. App. 104 | Mo. Ct. App. | 1910
Under the theory adopted by both parties in the presentation of this case to the trial court as well as to this court, two questions are pressed for determination and they will be considered in their order.
I. The appellants’ first assignment is that the court committed error in issuing a second alternative writ of mandamus and in failing to pass upon a demurrer filed by them to the first writ, the contention being that while the first writ was undisposed of the court had no power to issue the second writ and that the defendants’ motion to quash the writ for these reasons should have been sustained.
The appellants also contend that the second petition and the alternative writ issued thereon was a complete change of the cause of action, and a departure
The authority to allow amendments in eases of proceeding by mandamus is specifically provided for by statute. Section 657, Revised Statutes 1899, contains a general provision for allowing amendments of pleadings, and section 675, Revised Statutes 1899, specifically provides that these provisions shall apply to writs of mandamus as well as to other proceedings. Our statutes relating to amendments- of pleadings leaves a very large discretion to the trial court and allows the curing of defects of form and many errors of substance in pleadings to save rights and advance justice.
Appellants complain, however, that the court erred not only in permitting an amendment, but because the character of the amendment was such as to' constitute a new cause of action. The question in our courts as to what extent amendments should be allowed to petitions is not entirely free from doubt, and some difficulty arises in reconciling all the opinions on this question. The test of allowable amendments in some cases has been formulated in the pronouncement (1) that the same evidence will support both .petitions, and (.2) that the same measure of damages will apply to both, and it has been held that these are the criteria in judging of the allowableness of an amendment. [Scoville v. Glasner, 79 Mo. 449.] But in a later case, our Supreme Court has drifted from this hard and fast rule of inter
II. Appellant’ principal contention remains for consideration and is that under the sections of law providing for the awarding of the depositary it is expressly provided that the school board should have the'right to reject any and all bids, and that such authority vested them with discretionary power; that, having the discretionary power, they were authorized to exercise it in view of the facts and circumstances as they saw them; that, having acted their discretion could not be controlled and they could not be directed by the courts what action they should take or to whom they should award the depositary.
The general rule is everywhere recognized that the writ of mandamus will not issue to control the judgment or discretion of a public officer or officers, but only to require the performance of a plain ministerial duty. The word “discretion,” however, is susceptible of widely different definitions, as actually applied to the administration of affairs. When it becomes an uncontrolled power, it is often a source of intolerable abuses. Speaking of the discretion-of a judge, an eminent jurist, Lord Camden, said: “The discretion of a judge is the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends on the constitution, temper and passion. At best it is often caprice. In the worst it is every vice, folly and passion to which human n ' be liable.” [3 Words and Phrases 209-6-3
The policy and history oi our state in its legislation concerning depositaries, county and school, has received a very able and classical statement in the opinion rendered by Bland, J., in the case of State ex rel. v. Hawkins, 13 Mo. App. l. c. 45, 109 S. W. 77.
“Prior to 1895, the treasurer of the state and the treasurer of many of the counties of the state derived a profit from the state and county funds by receiving
The discretion that an official may exercise in the discharge of his duties was discussed in the case of State ex rel. v. Lafayette County Court, 41 Mo. 222, which was a mandamus proceeding to compel the county court to approve the bond tendered by the sheriff. The petition stated that the court exercised its authority in a capricious and arbitrary way in refusing to approve the bond tendered. In the lower court a demurrer was sustained to the sufficiency of the allegations of the petition, and an appeal was taken to the Supreme Court. In passing upon the court’s action Judge Wagner said: “The approval or rejection of the bond is essentially a ministerial act, though coupled with a discretion. When the law devolves up on an officer the exercise of a discretion, it is sound legal discretion, not a capricious, arbitrary or oppressive one. In a case like the one presented here, if this court has no' jurisdiction the. petitioner would stand in the anomalous attitude of a person having a clear specific right, and yet be entirely remediless by law."” Again, in the case of State ex rel. v. Public Schools, 134 Mo. l. c. 306, 35 S. W. 617, our Supreme Court approves the statement of the law concerning discretion announced in tlae ease of Village of Glencoe v. People, ex rel., 78 Ill. 382, where the learned court said: “The discretion vested in the council cannot be exercised arbitrarily, for the gratification of feedings of malevolence, or for the at
Appellants claim that they exercised their discretion on this question and that their judgment is final. Discretion must always be reasonably exercised. As to whether or not it is reasonably exercised is a question for the courts. 'In the trial of this case, the evidence of the respective litigants was heard and determined by the court; the three members of the school board who had voted for awarding the funds to the Miners Bank testified in the case and their testimony tended to show that the conditions were the same at the time of the advertisement for bids as at the time of awarding the funds. It goes also to show that without regard to the difference in the bids made by the respective institutions, the funds were in fact awarded to the Miners Bank, because that bank had a personal preference of the majority of the board, a preference not based on sound legal discretion, but on purely personal fayor. The evidence also showed that each of said institutions bidding for the funds was in every way reliable, capable of making a bond and complying with all the conditions of the advertisement, and further, that one of the said institutions was as convenient as the other for the transaction of the business of the treasurer.
The acumen and learning of counsel for the appellants has utterly failed to furnish any reason that commends itself to a disinterested person why the school funds were awarded to the lowest bidder instead of the relator, the highest bidder; and no reason has been given for the action of the school board which will stand a moment’s investigation when examined
Mandamus is a civil proceeding or .remedy having the nature and attributes of a civil action, legal, and not equitable, personal in its nature, and civil, not criminal. [26 Cyc. 140, 141.] The findings of the trial court in such cases, when supported by the evidence, cannot be disturbed by the appellate court. The evidence in this case abundantly shows that the majority of the board of directors in awarding the depositary to the Miners Bank, the lowest bidder, acted capriciously, arbitrarily and from personal favoritism, and were guilty of a gross abuse of their discretionary powers; under such circumstances, unless controlled by mandamus, the very purpose of the law in regard to awarding the depositaries of school funds would be defeated. It is therefore ordered that the judgment of the trial court be and the same is hereby affirmed.