State ex rel. McMillan v. Woodside, 254 Mo. 580

254 Mo. 580 | Mo. | 1914

OPINION.

BOND, J.

Notice, ' (After stating the facts as above)'. — ' I. We leave out of view the contentions of relator," that jurisdiction in the sense of power to act, on the part of the respondent circuit judge, as to the grant of a preliminary injunction, was conditioned upon a showing of previous notice of the application therefor, given to the defendant. Such is not the law, and no support for that view can be found either in the general principles of equitable jurisprudence or in the statutes of this State. '

The statute of this State provides that béfore the issuance of an injunction to stay “any proceedings” “reasonable notice in writing” by the applicant shall be given to the adverse party or his agent in this State, or if neither is within the State, by putting up such notice for ten days in the office of the clerk o.f the circuit court where the suit is filed. [R. S. 1909, secs. 2517, 2518.] The case brought here by the relator was not one to stay any suit or judgment or judicial proceedings, and therefore does not fall within the purview of the statutory rulés. It is, however, proper in ordinary cases asking for injunctive relief other than the staying of legal proceedings, that notice should be given of the application for the writ. But there may be extraordinary cases' of that character, in which the giving of such notice would - defeat the only purpose of the action; hence, equity has never prescribed it as a condition precedent in all cases to the grant of a temporary injunction. [R. S. 1909, sec. 2532; Tuttle v. Blow, 176 Mo. l. c. 171; Lewton v. Hower, 18 Fla. 872.]

The jurisdiction of the circuit court of the case made by the petition was not dependent upon the fact of previous notice to the defendant of the motion for temporary injunction. But before leaving that matter wie desire to say that in the case at bar the record discloses nothing unjudicial on the part of the circuit judge in granting the writ, since it appears that notice was given as soon as plaintiffs were apprised of the place and time fixed for the hearing, and while the time was necessarily shortened to accord with the departure of the judge it was also shown that he acted in an emergent matter and upon the understanding that the defendants would not appear and after requiring an agreement from plaintiffs to try the case at a special term of court which he would convene if defendants desired.

This was commendable conduct on the part of the judge and tended to conserve all the rights of the defendants. [R. S. 1909, sec. 2532.]

II. The question decisive of this case is, whether the petition for injunction presented a case of which the circuit court in the exercise of its equitable powers could take cognizance and grant relief? For it has been seen that there was no lack of power to grant the temporary writ, if the circuit court was possessed of' jurisdiction of the subject-matter of the action.

This the relator denies on the theory that the section of the statute quoted in the statement and other sections of the article headed “Bridges,” confide the whole matter of contracting for and building bridges to the unreviewable expression of the county court. We cannot agree to that view of the law. The statute in terms vests the county court with authority to decide to build a bridge. That power is given by its first sentence, to-wit: “If the county court be of the opinion that a bridge is necessary, and that srich bridge shall be built at the expense of the county, said court shall determine in what manner and of what materials the same shall be built, and the probable cause thereof.” The succeeding portion of the section and other sections following it, charged the county court with the duty of requiring the county engineer to view the location and report the cost of the contemplated bridge and thereafter to advertise the letting of the contract, which shall be subject to the approval or the rejection of the county court, and which contract the county court is forbidden to approve if “made in any other manner than is provided for by this article.” [R. S. 1909, sec. 10495.] These sections further provide that the county court has no power to pay the expense of bridge building out of any revenue later than the year of the contract and in using these it has no power to exceed the constitutional limit. [R. S. 1909, sec. 10496; Constitution of Missouri, art. 10, sec. 12; Trask v. County, 210 Mo. 582; Book v. Earl, 87 Mo. 246; Decker v. Diemer, 229 Mo. l. c. 331.]

From this enumeration of the powers and duties of the county court as set forth in the Revised Statutes 1909, secs. 10486-10504 inclusive, it is evident that in dealing with the subject of bridge building the county could, exercises two distinct and separate functions. As to the matter of determining the necessity for a bridge, the guardians of the interest of the county are clothed with full powers of decision. For no bridge could be lawfully built at the expense of the county unless the county court had first adjudged it to be necessary, and no superior judicial tribunal is authorized to restrain or coerce the county court in rendering its opinion on that particular matter, for to that extent its action is purely discretionary under the powers given to it by the language of the statute. [State ex rel. v. Thomas, 183 Mo. 220.]

But as to the power to contract for the work of building the bridge and to cause contracts to be let for that purpose and to pay for the work — in all these respects — the county court is only vested with power to act administratively and in subordination to the Constitution and statutes regulating its action and proceedings in such matters. As to these duties, the county court is not possessed of uncontrollable power or authority to act in disregard of the Constitution and laws and without being subject to any restraint or review of its action by courts of competent jurisdiction. All such acts and doings, if not wholly ministerial, are yet discretionary sub modo, and necessarily therefore may be restricted to the limits and conditions fixed for their exercise by the Constitution and the statutes. This essential distinction between the nature of the acts,, of the county court is overlooked in the contention of the relator. The present suit in equity was not brought to prevent the judgment and determination of the county court to build a bridge, but it was brought to prevent the enforcement of that decision by the making and letting of unconstitutional contracts on behalf of the, county and by disregarding the specific statutory prerequisites to such contracts.

The allegations of the petition present this view in clear and explicit terms and they furnish in this case the correct criterion of the jurisdiction of the lower court when attacked by prohibition. [High on Extra. Rem. (3 Ed.), 767B; State ex rel. v. Tracy, 237 Mo. l. c. 118-121; State ex rel. v. Muench, 225 Mo. l. c. 226.]

The power of a court of equity to enjoin a contract or a construction of a bridge in contravention of the Constitution and statutes is ample under equity jurisprudence as well as the statutes and laws of this State. [R. S. 1909, sec. 2534 et seq.; State v. Curators, 57 Mo. 178; Newmeyer v. Railroad, 52 Mo. 81; Davis v. Hartwig, 195 Mo. l. c. 399; Crampton v. Zabriskie, 101 U. S. 601.]

The cases relied on by relator do not support his contention. As far as they are in point they simply announce the doctrine that in the exercise of its “judicial function,” the county court cannot be controlled or interfered with by other courts; but none of them sustain the proposition that in the performance of such ministerial act as befits the agent of the people in constructing bridges for their benefit they are exempted from compliance with the Constitution or statute regulating these duties, or free from the control of courts of equity at the instance of the taxpaying citizens of the county. In other words, if the regulatory provisions of the Constitution and statutes are binding upon the judges of the county court, then they are not vested with limitless power in the matter of letting contracts and using the money of the county to pay for building bridges, and this being conceded it necessarily follows that a.court of equity is the proper forum to give preventive relief.

We think that Judge Woodside was possessed- of jurisdiction to try the case made by the petition filed in the circuit court of Pulaski county, and that the writ of prohibition was improvidently granted. It is therefore quashed.

All concur.