State ex rel. Hortsman v. Gasconade County Court

Citation25 Mo.App. 446
PartiesSTATE EX REL. HERMAN HORSTMAN, Appellant, v. COUNTY COURT OF GASCONADE COUNTY, Respondent.
Decision Date11 April 1887
CourtCourt of Appeals of Kansas

APPEAL from Gasconade Circuit Court, HON. A. J. SEAY, Judge.

Affirmed.

The case and facts are stated in the opinion.

LOUIS HOFFMAN, for the appellant.

I. Under the pleadings of this case the appellant was entitled to the peremptory writ, and the relief prayed for, for the reason that the county court had no discretion in the matter of appointment of road overseer, upon the presentation of the proper petition, as prescribed by section 11, on page 161, of the session acts of 1883, of " An Act Concerning Roads and Highways." The petition, and alternative writ stated all requisite matter under said section, and respondent's return or demurrer admitted the same. Session Acts, 1883, sect. 11, p. 161.

II. A mandamus is the proper proceeding to compel a county court to do its duty respecting roads. Platte County Court v. McFarland, 12 Mo. 166.

E. M CLARK and ROBERT WALKER, for the respondent.

I. Mandamus will not be issued unless there is a clear and legal right to be enforced, and where there is no other specific and adequate legal remedy. High Extra. Leg. Rem. [1 Ed.] sect. 9, p. 11; State ex rel. v. County Court of Howard County, 39 Mo. 375; State ex rel. v McAuliffe, 48 Mo. 112.

II. There is nothing like a clear and legal right to be enforced in the case at bar, inasmuch as it is the sworn duty of the county court of each county to appoint suitable persons as road overseers in their respective counties. The right of the majority of taxpayers in any road district, to petition for the appointment of any resident taxpayer as overseer in their district, does not divest the county court of the discretionary power necessarily lodged in them to make a suitable appointment. Laws 1883, sect. 11, p. 161.

III. Mandamus will never be granted in cases where, if issued, it would prove unavailing. High on Extra. Leg. Rem., sect. 14, p. 15; State ex rel. v. Rodman, 43 Mo. 256; State ex rel. v. Draper, 50 Mo. 24.

IV. Mandamus may be issued to restore a person to an office to which he is entitled. But it cannot be issued when the office is already filled by a person holding by color of right. In such a case, quo warranto is the proper remedy. St. Louis County Court v. Sparks, 10 Mo. 118; State ex rel. v. Rodman, 43 Mo. 256; State ex rel. v. Moseley, 34 Mo. 375; Winston v. Moseley, 35 Mo. 146; State ex rel. v. Thompson, 36 Mo. 70.

PHILIPS P. J.

This is a proceeding by mandamus, against the justices of the county court of Gasconade county. The petition states, substantially, that prior to February, 1886, the said county court had divided said county into convenient road districts, of which district number 13 was one; that relator was a resident taxpayer of said district; that a majority of the taxpayers of said district presented to said court, at said February term, their petition, in due form, praying for the appointment, in said district, of the relator as road overseer; that the court, unmindful of its duty, and in disregard of the law and the rights of the relator, then and there refused to grant said petition, and to appoint said relator such overseer, but, on the contrary, did, at such term, appoint William Moore to said office, etc. To the alternative writ, issued thereon by the circuit court, the respondent made return, stating that the county court, in the exercise of a discretion claimed for it, had refused to make the appointment of relator, and had, in fact, selected and appointed, as a suitable person, to such office, at its said February term, 1886, said William Moore, who, immediately thereafter, duly qualified as such overseer, entered upon, and so continued in the performance of the duties of such office, etc. No reply was made to this return. On this state of the pleadings the court refused to make the said writ peremptory, but dissolved the temporary writ. Relator has appealed.

I. Section 11, of the act of 1883 (Laws, 1883, p. 159), under which this case arose, requires the several county courts to divide their counties into convenient road districts, and, at the February term of the court, in each year, to " appoint a suitable person in each road district to act as road overseer for the next ensuing year, provided, however that a majority of the taxpayers of any road district shall have the right to petition the county court, in writing, for the appointment of...

To continue reading

Request your trial
5 cases
  • State ex rel. Gallagher v. Kansas City
    • United States
    • Missouri Supreme Court
    • 4 Abril 1928
    ...620; St. Louis Co. v. Sparks, 10 Mo. 117; State ex rel. v. Thompson, 36 Mo. 70; State ex rel. v. Rodman, 43 Mo. 256; State ex rel. v. County Court, 25 Mo. App. 446; State ex rel. Cannon v. May, 106 Mo. 488; Winston v. Moseley, 35 Mo. 146; Stabler v. Porter, 232 Pac. 187; State v. Atlantic C......
  • State ex rel. Gallagher v. Kansas City
    • United States
    • Missouri Supreme Court
    • 4 Abril 1928
    ... ... Gallagher, Appellant, v. Kansas City et al No. 28663 Supreme Court of Missouri April 4, 1928 ...           Motion ... for ... St ... Louis County Court v. Sparks, 10 Mo. 117; Winston v ... Mosely, 35 Mo. 146; State ... State ex rel. v. Gasconade" County Court, 25 Mo.App ... l. c. 450, comes this language: ...    \xC2" ... ...
  • Norton v. Bohart
    • United States
    • Missouri Supreme Court
    • 2 Junio 1891
    ... ... Bohart, Appellant Supreme Court of Missouri, Second Division June 2, 1891 ... v. Brundage, 25 Mo.App. 268; State to use v ... Samuels, 28 Mo.App. 649; ... term, 1883, of the probate court of Platte county, ... state of Missouri, was regularly qualified ... ...
  • State ex rel. Cannon v. May
    • United States
    • Missouri Supreme Court
    • 26 Octubre 1891
    ...compel the admission of another claimant, nor to determine the disputed title." State ex rel. v. Taaffe, 25 Mo.App. 570; State ex rel. v. County Court, 25 Mo.App. 446; State ex rel. v. Auditor, 36 Mo. 72; Court v. Sparks, 10 Mo. 120; State ex rel. v. John, 81 Mo. 13; Ellison v. Aldermen, 89......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT