Mansfield v. Fuller

• Decision Date: 31 July 1872
• Citation: 50 Mo. 338
• Parties: J. K. MANSFIELD et al., Defendants in Error, v. SYLVESTER FULLER et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

50 Mo. 338

J. K. MANSFIELD et al., Defendants in Error,

v.SYLVESTER FULLER et al., Plaintiffs in Error.

Supreme Court of Missouri.

July Term, 1872.

Error to Vernon Circuit Court.

F. P. Wright, for plaintiffs in error.

Johnson & Botsford, for defendants in error.

BLISS, Judge, delivered the opinion of the court.

The plaintiffs sued out of the Circuit Court a writ of mandamus against the defendants as judges of the County Court of Vernon county, commanding them to audit and pay their accounts for services and expenses as a sheriff's posse in protecting the board of registration in the performance of their duties under the registration act of 1868 (Wagn. Stat. 1157, § 36), or show cause, etc. The accounts were shown to have been presented and rejected; they were severally adjusted by the Circuit Court, and a peremptory writ was ordered, from which defendants appeal.

We need only consider the right of the plaintiffs to resort to this remedy. Mandamus is one of those extraordinary writs that will issue only when the applicant has no other specific remedy. (State v. Howard County Court, 39 Mo. 375; Moses on Mand. 14.) It is never resorted to to enforce the payment of a debt when it can be collected by suit, unless the tribunal having jurisdiction refuses to act, in which case the order will be not to render a specific judgment, but to proceed with the cause.

The writ is often issued to the auditor of State, requiring him to audit demands against the State that have been provided for by law. The State cannot be sued, and the claimant has no other remedy. So mandamus may be properly issued to judges of County Courts to perform their duty, when no judgment can be obtained against the county. In The State v. Saline County Court, 48 Mo. 390, the obligation to pay the bonds then under consideration was not upon the county of Saline, or upon any municipal or quasi corporation that could be sued. The statute pointed out a specific mode by which they could be met, to-wit: by the assessment of taxes upon a certain section of the county; and the only specific remedy the holder of the bonds could have would be by mandamus to compel the assessment. So in The State v. Bollinger County Court, 48 Mo. 475, the relator had no claim upon the county, but only upon a certain fund in the custody of the County Court. The county, therefore, could not have been sued. In The State v. Treasurer of Callaway County, 43 Mo. 228, the claim enforced by mandamus had been regularly audited by the County Court, but the question of jurisdiction was not raised in that case, and it is no authority upon that point; and the same remark will apply to Flagg v. Mayor, etc., of Palmyra, 33 Mo. 440, and to The State v. Justices of Buchanan County, 41 Mo. 254. It should be also noted that our general railroad act expressly authorizes the writ of mandamus upon default by County Court, etc., and the cases in which it has been issued to enforce the payment of railroad bonds furnish no precedent in other cases. (See Wagn. Stat. 307, § 22; Sess. Acts 1855, p. 429, § 35.)

In relation to bonds of cities and counties, issued under acts which provide especially for the assessment of taxes to meet them, but without express authority for this writ, the decisions in other States have been conflicting. In Kentucky it is held to be an appropriate remedy to compel the assessment, although no judgment has been obtained. (Maddox v. Graham et al., 2 Metc. Ky. 56; 11 B. Monr. 154.) So in Ohio. (State v. Commissioners, etc., 6 Ohio St. 280.) In New York, where a suit can be properly instituted, the prevailing doctrine is that the claim must be first...