In re Saline Cnty. Subscription

• Decision Date: 31 October 1869
• Citation: 45 Mo. 52
• Parties: IN THE MATTER OF THE SALINE COUNTY SUBSCRIPTION, PHILIP H. THOMPSON et al., Petitioners.
• Court: Missouri Supreme Court

45 Mo. 52

IN THE MATTER OF THE SALINE COUNTY SUBSCRIPTION, PHILIP H. THOMPSON et al., Petitioners.

Supreme Court of Missouri.

October Term, 1869.

Petition of certiorari.

W. B. Napton, for petitioners.

This court may review the subscription of the County Court, on certiorari. The writ is addressed to a court, proceeding under a special law, and judicially construing that law erroneously, and there is no remedy by appeal on error. (Hannibal and St. Joseph R.R. Co. v. Morton, 27 Mo. 317; Redfield on Railroads, ch. 27, § 202, and cases there cited; Robinson v. Board of Supervisors, 16 Cal. 208, and authorities cited in that case; Gillespie v. Broas, 23 Barb. 370.) The act of the County Court was not legislative nor executive, nor was it the exercise of a mere discretion not subject to the review of any other tribunal.

J. B. Henderson, and Sharp & Broadhead, for respondent.

A certiorari, at common law, lies only to inferior courts, and officers exercising judicial powers. (People ex rel. Agnew et al. v. Mayor, etc., 2 Hill. 9.) The writ will not lie to review official proceedings of either a legislative, executive, or ministerial character. (Same case, pp. 11, 12, 13; 43 Barb. 232; People v. Supervisors Queens County, 1 Hill, 195; People ex rel. Church v. Supervisors, 15 Wend. 198.) Mere corporate or ministerial acts can not be reviewed on certiorari. The acts must be plainly judicial. (Mount Morris Square v. New York, 2 Hill, 14.)

BLISS, Judge, delivered the opinion of the court.

The County Court of Saline county subscribed for $400,000 of the stock of the Louisiana and Missouri River Railroad Company, and have issued bonds in payment of said stock. Philip H. Thompson and other tax-payers of said county sued out of this court a writ of certiorari directed to the judges of said court, charging a want of authority to make the subscription and issue the bonds.

Before considering any other question, the preliminary one must be decided, whether certiorari will lie in a case of this kind. “A certiorari is an original writ issued out of chancery or the King's Bench, directed in the King's name, to the judges or officers of inferior courts, commanding them to return the records of a cause depending before them, to the end that the party may have the more sure and speedy justice.” (Bac. Abr., Certiorari, A.) The matter not being regulated by statute in Missouri, either as to the cases in which this writ may issue or the practice under it, we are left entirely to the general law. The writ issues only to inferior courts and to review only judicial action. Was, then, the action of the County Court of Saline county, in subscribing to the stock of this railroad company and issuing bonds, a judicial action? Judicial action is an adjudication upon the rights of parties who in general appear or are brought before the tribunal by notice or process, and upon whose claims some decision or judgment is rendered. It implies impartiality, disinterestedness, a weighing of adverse claims, and is inconsistent with discretion on the one hand -- for the tribunal must decide according to law and the rights of the parties -- or with dictation on the other, for in the first instance it must exercise its own judgment under the law, and not act under a mandate from another power. The tribunal is not always surrounded with the machinery of a court, nor will such machinery necessarily make its action judicial. A County Court is certainly a judicial body for some purposes, but no more so for the name, nor for the fact that it has a seal and a clerk and keeps a record. The character of its action in a given case must decide whether that action is judicial, ministerial, or legislative, or whether it be simply that of a public agent of the county or State, as in its varied jurisdiction it may by turns be each.

The authorities all agree that the action to be reviewed by the writ must be judicial, but they are not wholly consistent as to what action is judicial. I find, however, a great preponderance, both in the reasoning of the judges, and, as I think, in the weight of the authority, against the proposition that proceedings like those of the County Court under consideration can be treated as judicial. There are but two cases in our reports where the writ of certiorari as an original writ was issued from this court. The first is Rector v. Price, 1 Mo. 198, where the principal question was the right to issue it under our then constitution; and the other is The Hannibal and St. Joseph Railroad Company v. Morton, 27 Mo. 317, to review the action of reviewers appointed by the Circuit Court in assessing damages to the owners of land over which this railroad passed. The question that arises in the present case was not raised in either of those, as there was no doubt in regard to the judicial character of the action under review; but our decisions upon the various subjects of County Court jurisdiction, in relation to their character as judicial or otherwise, have been generally consistent.

The proceedings in general of County Courts in probate matters have been treated as judicial, especially when they are adverse, and parties are brought in, or are supposed to be in court; and while some things in the laying out and opening of public roads may be considered as legislative or administrative, still all action affecting the property-rights of private persons is clearly judicial and subject to review in the appellate courts. (Overbeck v. Galloway, 10 Mo. 364; Cooper County v. Geyer, 19 Mo. 247; Bernard v. Callaway County Court, 28 Mo. 37; County of St. Louis v. Lind, 42 Mo. 348; Foster v. Dunklin, 44 Mo. 216.) This court, in The County of St. Louis v. Sparks, 11 Mo 201, seems to treat the action of the County Court against a defaulting collector as judicial, it having been based upon the provisions of article II of the act concerning county treasurers in the revision of 1835 (p. 151)--a very different statute from the one now in force on the subject, and one that made it the duty of the County Court to render judgment against the defaulter.

In approving the bond of a sheriff, County Courts act in a ministerial, and not in a judicial, capacity. (State ex rel. Adamson v. Lafayette County Court, 41 Mo. 221; State ex rel. Jackson v. Howard County Court, id. 247.)

County Courts have exclusive jurisdiction in the repairing of public buildings. “These matters belong to the administrative and ministerial functions of the County Court, and not to the judicial branch of their jurisdiction.” (Vitt v. Owens, 42 Mo. 512.)

The action of the County Court in making a subscription to the stock of a railroad company is administrative and discretionary. There is no imperative obligation to make it. (St. Joe and Denver City R.R. Co. v. Buchanan County, 39 Mo. 485.)

We have held, at this term, in Marion County v. Phillips, that a settlement with the county collector was not a judicial act, but that of the public agents of the county with one of its officers; and the general question is also considered. The case of St. Joe and Denver City Railroad Company v. Buchanan County expressly decides the case at bar; and all the cases are inconsistent with the idea that the exercise of...