Walker v. Likens

24 Mo. 298 | Mo. | 1857

Scott, Judge,

delivered the opinion of the court.

We shall take it for granted that the act of March 3,1851, (Sess. Acts, p. 274,) entitled, “An act to provide for, and laying out roads and highways in the several counties of this state,” furnishes the rule by which we are to be governed in this case, so far as the statutory regulations respecting roads are concerned. If there is any other statute on the subject we have not been enabled to find it, nor have we been referred to any other. This premise is made on account of the great number of different laws for different counties then existing, which made it a matter of no little difficulty to ascertain what was the road law of many counties in the state.

We concur in opinion with the counsel of the plaintiffs, that it is immaterial whether or not the defendants had notice that the road as laid off touched the intermediate points specified in the petition for its establishment, and that no damages had been assessed to the plaintiffs by the commissioners. But from this concession we do not come to the conclusion that the proceedings for opening the .road were nullities, and that the defendants were trespassers. Hard would be the condition of road overseers and the hands compelled to work roads, if, at their peril, they were bound in all instances to see that the orders under which they are acting were regular and in conformity to the constitution and laws. It is obvious that the rigid enforcement of such a doctrine would stop the opening and repairing of roads, and would operate as a repeal of the. statute on that subject. The county court had jurisdiction of the subject matter, and it sufficiently appears that the plaintiffs had notice of its proceedings. Under these circumstances, if there was error or irregularity in the course pursued, the duty required of the plaintiffs was, that they should resort to the remedies afforded by the constitution and laws for relief. They being in court, and having notice such as the law required, ought to have adopted means to obtain redress for the wrong of which they complain. The statute, to which reference has been made as governing this subject, do.es not in express terms give the party wronged an appeal; but we are not therefore prepared to say that an appeal would not lie. In the case of the County of Cooper v. Geyer, 19 Mo. 257, somewhat similar to this, an appeal was sustained. But if no appeal was given, we will not say that the party would be without redress. Resort might sbe had to other means, unless it was intended that there should be no review of the matter.

Where there is jurisdiction over the subject, and notice to the party affected, we do not consider that the circumstance, that the matter of which complaint is made involves an infraction of the constitution, gives the party a remedy different from that to which he would have been entitled had the error or irregularity consisted in any other thing. If, in the progress of a cause, a constitutional question arises, or if the construction of the constitution is involved in it, the party against whom judgment is rendered can not controvert its correctness in an action ..of trespass against those who may be employed to carry it into execution. He must obtain redress in tie same way as if tie error had been committed in reference to any other subject. This view of tie case disposes of all tie instructions about which there •was any controversy.

It is an error to suppose that the plaintiffs were entitled to any notice under the 1.8th section of the act of 1845, concerning roads. By reference to the session acts of 1847, p. 127, it will be seen that the section referred to was repealed by an act approved 11th February, 1847.

We have already said that the act of the 3d of March, 1851, controlled this proceeding, and it sufficiently appears from the record that the plaintiffs had all the notice contemplated by that act. We do not intend to be concluded by any thiDg previously said in relation to the right of the plaintiffs to an appeal from the proceedings of the county court. Whether the act of 1851 designed them to be final or not, we will not now determine. Whatever the meaning of the law may be, we do not consider that the plaintiffs were entitled to the redress they sought in this action. The other judges concurring, the judgment will be affirmed.