Hannibal & St. Joseph R.R. Co. v. Morton

• Decision Date: 31 October 1858
• Citation: 27 Mo. 317
• Parties: HANNIBAL AND ST. JOSEPH RAILROAD COMPANY v. MORTON. SAME v. SAME.
• Court: Missouri Supreme Court

27 Mo. 317

HANNIBAL AND ST. JOSEPH RAILROAD COMPANY

v.MORTON.

SAME

v.SAME.

Supreme Court of Missouri.

October Term, 1858.

1. Where, in proceedings instituted in behalf of the Hannibal and St. Joseph Railroad Company, under its charter, to obtain the condemnation and appropriation of land upon which said railroad had been located, it was stated in the report of the viewers appointed to assess the damages, that before proceeding to examine the damages they took the oath prescribed by the statute, but the oath itself was not set forth; held, it not appearing that any objection was made to the report on this ground, that the recital in the report was sufficient to show that the required oath had been taken.

2. The Supreme Court would not in such case quash the proceedings for the reason that the record thereof does not show affirmatively that the viewers were citizens of the county.

3. The charter of the company not making any provision for bills of exceptions in such cases, they could not be taken; if taken, they would form no part of the record.

4. The Supreme Court could not, in such case, quash the proceedings on the ground that the damages allowed by the commissioners were inadequate.

5. Quere, when may writs of certiorari issue from the Supreme Court, and what is the proper office and function of such writs?

Certiorari to Judge of Marion Circuit Court.

Since the dismissal of the writs of error in these two cases (see 20 Mo. 70), the defendants, David and Samuel Morton, petitioned the Supreme Court to grant writs of certiorari directed to the judge of the Marion Circuit Court. In obedience to these writs, transcripts of the records in said cases were filed in the office of the clerk of the Supreme Court, on which said defendants made assignments of error.

The facts, it is deemed, sufficiently appear in the opinion of the court and in the report of the case of Hannibal & St. Joseph Railroad Co. v. Morton, 20 Mo. 70.

S. T. & A. D. Glover, for S. & D. Morton.

I. The writ of certiorari is the proper process to bring up an unfinished proceeding in an inferior court of record, or a summary proceeding in such court not according to the course of the common law after judgment, where there is alleged error. (Redfield on Railways, 469; 3 Humph. 145; see 2 Ala. 35; R. M. Charlt. 298; 9 Ohio, 143; 8 Greenl. 293; 5 Minn. 24; 3 Halst. 122; 1 Gill & Jo. 196; 10 Wend. 174; 5 Mass. 423.) The common law writ of certiorari may issue to all inferior tribunals in cases where they exceed their jurisdiction or proceed illegally, and there is no appeal, or other mode of directly reviewing their proceedings. (14 Ills. 383; 13 Ills. 660.) No appeal or writ of error lies here. (20 Mo. 70.)

II. The proceedings against the Mortons were contrary to the charter of the company, illegal, and ought to be quashed. The proceedings were not commenced until the road was constructed. (See 10 How. 395; Sess. Acts, 1837, p. 250, §10; Red. on Railw. 114-5; 10 Wend. 167.) The statement of the clerk that the viewers took the required oath is not what the law required. The oath was to be subscribed and kept to be seen. The record should show that the law has been complied with. It does not. There was only nine days' notice of the first assessment of damages. This assessment was, therefore, a nullity. It was given not by the viewers, but by Joshua Gentry, agent of the company. There was no notice at all touching the last assessment. The order of the clerk entering judgment on the second report was illegal and void. The objections were entered in time, three days after the filing of the report. (See Sess. Acts, 1837, p. 250.) The judgment was in the face of the statute. When objections were filed, the judge was to consider them, and then direct the proper judgment to be entered.

Lamb & Lakenan, for Hannibal and St. Joseph R. R. Co.

I. The decision of the circuit judge upon the report of the commissioners was final and conclusive. (20 Mo. 70.)

II. The writ of certiorari should have been directed to the judge who rendered the decision. The return should have been made by him personally. The return to the writ is made by the clerk of the Circuit Court for Marion county.

III. Writs of certiorari cannot be substituted for writs of error. (4 Mo. 251.) They will not lie where substantial justice has been done between the parties. (20 Pick. 71; 24 Pick. 181.) The Supreme Court can exercise appellate jurisdiction only. Certiorari does not lie after judgment. (1 Tidd's Practice, 330.) Nor will it lie from a superior to an inferior court, except where the former has original jurisdiction The proceedings in the present cases were regular. The only objection made by Morton at the time that is now urged, is that the damages were assessed after the road had been constructed by the company. The record does not show whether damages were assessed before or after the work had been finished or commenced. The record shows that the requirements of the statutes were substantially complied with.

NAPTON, Judge, delivered the opinion of the court.

These two cases were before this court on writs of error (20 Mo. 70), and it was held that the writs of error would not lie in such cases, and the writs were therefore dismissed. The records are now before the court on certiorari.

We have no statute here regulating writs of certiorari, nor has this court, so far as we are aware, given any construction to the constitutional provision which authorizes this court to issue the writ. It is not deemed necessary to undertake in this case to determine the exact class or classes of cases in which this writ may be resorted to. A reference to the English commentators and judicial decisions will readily show that the writ is much more extensively used in that country than it could be here, and under such circumstances which would totally exclude any resort to such a proceeding in this state. Admitting that a certiorari is the proper process to bring up a summary proceeding had before an inferior court, not according to the course of the common law, and, therefore, not examinable on error, yet the power of the court which issues the writ is restricted to an examination of such irregularities as occur in the exercise of the jurisdiction of the inferior court, and are apparent on the face of the record sent up. Where the inferior court has no jurisdiction at all, the opinion seems to prevail in England that a certiorari is not the appropriate remedy, but the party aggrieved must resort to his action of trespass. In this country, it seems to be the opinion of some of the courts that such cases are the very ones in which certiorari may be resorted to, and that a principal and leading object of the writ is to restrain the action of inferior magistrates within their proper sphere. (Birdsall v. Phillips, 17 Wend. 466; Redfield on Railways, §202 and cases cited.) Without undertaking to decide which of these views is correct, we will proceed to examine the errors assigned in the proceedings now before us. Most of these objections, it will be perceived, are very technical, and do not touch the merits of the proceeding.

The first is, that the record does not show that the oath prescribed by the statute was taken by the viewers. The report of the viewers to the court states that the viewers, before proceeding to examine the land and assess the damages, took the oath prescribed by the statute, but the form of the oath is not copied in the report. As no objection was made by the owners of the land to the report on this ground, we must presume that the oath was in proper form and duly administered; for so...