Dunklin Cnty. v. Dist. Cnty. Court of Dunklin Cnty.

• Decision Date: 31 October 1856
• Citation: Dunklin Cnty. v. Dist. Cnty. Court of Dunklin Cnty., 23 Mo. 449 (Mo. 1856)
• Parties: DUNKLIN COUNTY, ex relatione, v. THE DISTRICT COUNTY COURT OF DUNKLIN COUNTY.
• Court: Missouri Supreme Court

23 Mo. 449

DUNKLIN COUNTY, ex relatione,

v.THE DISTRICT COUNTY COURT OF DUNKLIN COUNTY.

Supreme Court of Missouri.

October Term, 1856.

1. A writ of mandamus will not lie to correct the errors of inferior tribunals by annulling what they may have done erroneously, nor to guide their discretion, nor to restrain them from exercising power not delegated to them; it will not, therefore, lie to a county court, directing it to vacate an order selling swamp lands to a railroad company in payment of a subscription of stock, and commanding the county court and all others to desist from carrying said order into execution.

2. The district county court within and for the county of Dunklin had power to transfer alternate sections of the “swamp lands” of Dunklin county to the Cairo and Fulton railroad company in payment of a subscription to the stock of that company made by said county court.

3. The trust, created by the acts of Congress of September 28th, 1850, granting swamp lands to the state of Missouri, is a personal trust reposed in the public faith of the state, and not a property trust fastened by the terms of the grant upon the land itself and following it into whose hands soever it may pass.

This was an application for a mandamus in the name of the county of Dunklin by Nathaniel G. Murphy, superintendent of public works in and for said county. The petitioner, after setting forth the grant to the state of Missouri of the swamp lands by act of Congress of September 28, 1850, for the purpose of enabling the state to reclaim them by means of levees and drains; also that the state of Missouri had by the act of February 23, 1853, granted to the county of Dunklin the swamp and overflowed lands within its limits, proceeds as follows: “Your petitioner further represents, that on the 18th December, 1855, the district county court within and for the counties of Dunklin, Stoddard and Butler, a court possessing the jurisdiction of a county court within and for each of said counties, by an order made on that date, at the December term of said court, did order and direct that the sum of $100,000 be subscribed by the said county of Dunklin to the capital stock of the Cairo and Fulton railroad company, a company duly incorporated by the general assembly of the state of Missouri for the purpose of constructing a railroad, as your petitioner believes, from the town of Fulton, in the state of Arkansas, to a point near or opposite to the city of Cairo, in the state of Illinois, and did appoint one George W. Mott on behalf of said county; and the said court did in said order further order and direct that alternate sections of the swamp and overflowed land so belonging to the county of Dunklin, and which had been granted by the United States to the state of Missouri, and by said state to the said county of Dunklin as aforesaid, commencing at the north boundary of said county, and extending thence southwards, be sold, transferred and conveyed by deed to said railroad company at the price of one dollar per acre, in an amount sufficient to fully pay off the subscriptions to the capital stock aforesaid, making the quantity of overflowed and swamp lands so ordered to be sold, 100,000 acres. And the said court, by said order, did further appoint the said George W. Mott, agent for and on behalf of said Dunklin county to execute deeds to said railroad company of the said overflowed and swamp lands, in the quantity aforesaid, in payment of the subscription to said capital stock, and to vote thereon on behalf of said Dunklin county, as will more fully appear by a certified copy of the order of said district county court hereto annexed and marked exhibit A; and your petitioner further represents that the said Cairo and Fulton railroad is not located upon, nor will the same, as projected, pass through any part of the said county of Dunklin; nor will the said subscription to the capital stock of said company, nor the conveyance of said overflowed and swamp lands in payment of such subscription, as directed by said order, in any manner tend to the reclaiming of said lands or any portion thereof, or to the building of the levees and drains contemplated by the terms of said act of Congress; on the contrary, your petitioner states that the appropriation of said lands, as directed by the order of said court, is in direct violation of the trust under which the same are held by said county, and contrary to the wishes of a large majority of the inhabitants thereof; that the said district county court, in directing the conveyance of said overflowed and swamp lands to the Cairo and Fulton railroad company, acted without authority of law; that the act of said court is done in bad faith to the government of the United States, and against the interest of citizens of the said county of Dunklin. Your petitioner further says that, at the March term, 1856, of the said district county court for the county of Dunklin, proceedings were had and taken in due form of law to set aside, vacate and annul the order of said court above recited; that said court then refused and still does refuse to vacate said order; that the said court, by its officers and agents, is now about to proceed to execute the same in violation of the rights of said county and of the trusts aforesaid, unless restrained by the order of this court. Wherefore your petitioner, for himself and on behalf of the said county of Dunklin, prays that a writ of mandamus may be awarded from this honorable court to be directed to the said district county court, commanding said court to show cause, if any it have, why so much of said order made at the December term, as directs alternate sections of said overflowed and swamp lands, owned by said county of Dunklin, as described in said order, to be sold and conveyed to said Cairo and Fulton railroad company, in payment of the subscription to the capital stock of said company, as well as so much of said order as appoints the said George W. Mott, an agent for and on the part of said county to execute a deed or deeds to said company of said lands in payment of said subscription, should not be rescinded, vacated and annulled; and further, commanding said court to show cause why it, its officers and agents, and particularly the said George W. Mott, should not be ordered and directed to desist from further attempting to execute the order of the said district county court; and that, in default of such cause shown, the said writ of mandamus may be made peremptory.”

Upon this petition an alternative mandamus issued, to which a return was made by Jonas Eaker, judge of said county court. Upon the coming in of this answer, which it is unnecessary to set forth, the relator's counsel moved for a peremptory writ of mandamus.

S. A. Holmes and Romyn, for relator.

I. The grant by Congress to the several states, of the swamp and overflowed lands lying within them, purports to be made expressly for the purpose of enabling them to reclaim such lands by the construction of levees and drains, and upon the proviso that the proceeds of said lands, whether from sale or by direct appropriation in kind, shall be applied exclusively, as far as necessary, to the purpose of reclaiming said lands by means of the levees and drains aforesaid. The attempt to purchase railroad stock with these lands is an entire...