41 Mo. 44 | Mo. | 1867
delivered the opinion of the court.
This is a suggestion accompanied with an exemplification of the record of the County Court of Clark county, filed in this court by the relators, supported by affidavit, and praying for a writ of prohibition against the justices of the County Court of said county, and against the commissioner appointed by the court to select a site for the seat of justice of said county, and the contractor with the court for the erection of county buildings at the place selected, to restrain them from further proceedings in the matter of a removal of the seat of justice of said county, on the ground that the court was exceeding its jurisdiction.
The case is submitted upon demurrer to the petition, from which (together with the exemplification of the records) it appears that a petition signed by some of the citizens of the county had been presented to the County Court in June, 1866, upon which the court, on the 2d day of October, 1866, made an order submitting the question of a removal of the seat of justice to the voters of the county at a general election to be held on the 6th of November following; that a vote was taken accordingly, and, there being a majority of the voters in favor of the removal, the court proceeded to make orders appointing a commissioner, appropriating money, and contracting for the erection of county buildings at
All these proceedings on the-part of the court took place after the general statutes of 1865 went into operation, though the petition had been presented before. The defendants contend that tlie proceedings were to be governed by the previous statute of 1855. This position cannot be sustained. The statute of 1865 on this subject was in force when the first action of the County Court was had upon the petition. This was a new statute covering the whole of the same subject matter of the previous act, which was thereby suspended and repealed. The former special act providing for a change of the seat of justice from Waterloo to Cahoka had been exhausted by the completion of the removal made under it. The proposition for still another removal fell under the general statutes.
The act of 1865 (G. S. 1865, ch. 86) gave the County Court power to proceed upon a petition of one-fourth of the voters of the county to order the question of a removal of the seat of justice to be submitted to the qualified voters of the county at the next general election, in the manner therein specified,and to appoint five commissioners to selecta site for a new seat of justice, if it should appear that “ two-thirds of the legally registered voters of the county” were in favor of such removal. The commissioners were to report their proceedings to the Circuit Court, accompanied with the evidences of the title to the land selected for such site, and the judge of that court was to certify his approval of the title to the County Court; and thereupon, if the court should believe that the most suitable place had been selected, it was then to become “ the permanent seat of justice of the county.”
It is clear that the County Court did not proceed in accordance with the provisions of this act. A majority only,
A more difficult question arises whether a prohibition is the proper remedy in such case. The duties of the County Courts are partly judicial, and in part merely administrative—State v. Cooper Co. Ct., 17 Mo. 507. In the exercise of that portion of their jurisdiction which is judicial in its nature, as in matters of probate, accounts, guardians, minors, lunatics, apprentices, and the like, in which an appeal is allowed to the Circuit Courts, the County Courts are a branch of the judiciary of the State, and as much State c'ourts as the Circuit Courts—Miller v. Iron Co., 29 Mo. 122. And if the court were exceeding its proper jurisdiction in matters of this kind, or were proceeding judicially upon a misconstruction of a statute involving a question of jurisdiction in any suit pending between parties (though the county might be one of the parties), there is no doubt that a prohibition might be granted, at the discretion of the court, at the instance of any one of the parties, or even of a stranger to the suit—Thomas v. Mead, 36 Mo. 232; Howard v. Pierce, 38 Mo. 296; Gould v. Gapper, 5 East, 345; Tylstra v. Charlestown, 1 Bay, 382; Washburn v. Phillips, 2 Metc. 296; Ex parte Smith, 23 Ala. 94; People v. Supervisors, 1 Hill, 201; Reese v. Lawless, 4 Bibb, 394; 2 Litt. Prac. 312.
But the office of a prohibition is to prevent courts from going beyond their jurisdiction in the exercise of judicial power, and not of ministerial or merely administrative function ; and in a case where the court errs on a question of
In Tetherow v. Grundy Co. Ct., 9 Mo. 117, it was decided that a writ of error would not lie from an order of the County Court appointing commissioners to locate a permanent seat of justice, and it was distinctly intimated as the opinion of the court that such a proceeding was not a civil suit depending between parties ; that such an order was not a final judgment on which a writ of error would lie; and that the plaintiff was not to be considered a party to the proceeding as a suit; but it was said that “ the Circuit Courts have a superintending control over the County Courts, and, if they exceed their powers or act contrary to their duty in proceedings in which writs of error will not lie, there are
In respect of the commissioner and contractor, it is apparent from the authorities that this writ must be refused. It is equally clear that the functions of the justices of the County Court in this matter pertain to their administrative capacity, and not to the exorcise of judicial power. The statute confers upon them a 'limited and special authority in proceedings of this nature. They derive their whole power from the statute. It is conferred upon them as representing the people of the county, whose agents they are in this business. The power given is made to depend upon the consent of at least two-thirds of the legally registered voters of the county, and this consent is to be manifested in the mode prescribed by the act, and in no other way. It is not imperative upon the court to adopt the place selected by the commissioners, though the title deeds be approved by the judge of the Circuit Court, unless they believe the most suitable place has been selected; this decision upon this matter, in the exercise of the discretion thus conferred, is to be evidenced by an order entered of record; and then the place so selected becomes the permanent seat of justice of the county. This is a direction as to the exercise of a power given by the statute, and the power must be exercised within the limits of the authority conferred and under the conditions imposed by the act. It is plain that the power given has not been pursued the conditions have not been complied with; the consent of the voters has not been obtained in the manner prescribed ; and it must follow that the pro
A prohibition not being the proper remedy, the demurrer will be sustained and the writ denied.