Sheidley v. Lynch

Decision Date04 June 1888
Citation8 S.W. 434,95 Mo. 487
PartiesSheidley et al. v. Lynch et al., Appellants
CourtMissouri Supreme Court

April 1888

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Reversed.

Karnes & Krauthoff, E. P. Gates and C. O. Tichenor for appellants.

(1) The county court may lawfully and rightfully do whatever is necessary to carry out and execute the trusts reposed in it. Railroad v. Marion Co., 36 Mo. 303; Walker v Linn Co., 72 Mo. 653; Linnville v. Bohanan, 60 Mo. 554; Boggs v. Co., 28 Mo. 586; Gammon v Co., 79 Mo. 223. (2) The county court has the authority to acquire land for the use of the county. R. S., sec. 1199. (3) The act of March 14, 1885, gave the county court authority to erect a court-house in Kansas City, and this necessarily carried with it the further authority to obtain land whereon to build it. DeWitt v. City, 2 Cal. 289. (4) The certificate of the circuit court as to the title was sufficient, and no time was specified within which the county court should act after receiving such certificate. The county court had jurisdiction over the matter, and it was for it to determine whether the purchase should be made. County v. Shores, 97 U.S. 279; Brewer v. Boston, 113 Mass.; Moore v. Mayor, 73 N.Y. 246. (5) The county court had made no order for the division of the funds of the county, thinking it impracticable to do so. The whole of the purchase money could have been paid at the time the order was made, but the court deemed it best to keep a part of the money on hand, and only to pay a part, waiting a short time until certain money came into the treasury to pay the balance. Such action is not condemned by Book v. Earl, 87 Mo. 246.

James Gibson for appellant Lynch.

(1) The functions of the county court in the matter at bar being administrative and not judicial, a writ of injunction or prohibition will not lie. Vett v. Owens, 42 Mo. 512; State ex rel. v. Clark Co., 41 Mo. 44; 45 Mo. 52; 10 West. Rep. 361. (2) There is no evidence of any fraud, and equitable interference cannot, therefore, be invoked on that ground. State ex rel. v. Howell Co., 58 Mo. 584; Moses v. Risdon, 46 Ia. 251; Andrews v. Knox Co., 70 Ill. 69. (3) The county court could approve of the location after its rejection in the first instance. Being an administrative act there was no res judicata. County v. Phillips, 45 Mo. 75; Reppy v. Jefferson Co., 47 Mo. 68; Phelps Co. v. Bishop, 46 Mo. 68; State v. Cooper Co., 17 Mo. 510. (4) The power to control and manage the real and personal property of the county involves the possession of a large discretion, and the circuit court cannot control the exercise of this discretion which is vested by law in the county court. Hooper v. Ely, 46 Mo. 507; State ex rel. v. Smith, 46 Mo. 63. (5) Revised Statutes, 1879, section 1199, is sufficient authority to purchase property for the use of the county. This is simply a continuance of the law of 1877. Laws, 1877, p. 227, sec. 8; City v. Riley, 52 Mo. 424, 429; City v. Foster, 52 Mo. 513; St. Louis v. Alexander, 23 Mo. 509. (6) Besides the act of 1885 confers on the county court full power to purchase the land. The county court is vested with such powers "as may be fairly or necessarily implied from those expressly granted." Walker v. Linn Co., 72 Mo. 653. Whenever a power is given by a statute, everything necessary to making it effectual is given by implication. Potter's Dwarris on Statutes, 123. (7) The certificate of the circuit court as to the validity of the title was sufficient. Nothing is better settled, as a general rule, than that, where a statute requires an act to be done by an officer within a certain time, for a public purpose, the statute shall be taken to be merely directory; and though he neglect his duty by allowing the precise time to go by, if he afterwards perform, his action will be upheld. Ex parte Heath, 3 Hill, 47; People v. Allen, 6 Wend. 486; Colt v. Eves, 12 Conn. 23, 255. No second certificate of title was necessary. Pond v. Negus, 3 Mass. 232; Wheeler v. Chicago, 24 Ill. 107. (8) Revised Statutes, section 6818, requiring the county court to apportion and subdivide the county funds is not in the first instance mandatory. Book v. Earl, 87 Mo. 253.

T. T. Crittenden, R. H. Field, Dobson, Douglass & Trimble and Gage, Ladd & Small for respondents.

(1) No question is raised on the pleadings or the evidence as to the violation of Revised Statutes, section 6818. (2) While courts are held in Kansas City, Independence is the county seat of Jackson county, hence the Revised Statutes per se confer no power to build a courthouse, or buy ground for that purpose, at Kansas City. R. S., secs. 5321, 5327. (3) Nor does the act of 1885 in terms or by requisite implication confer such power. To warrant the inference of an implied power having been conferred by statute, such implied power must be absolutely and indispensably necessary to carry into effect the powers expressly granted. 1 Dillon Mun. Corp. [3 Ed.] sec. 89. The fact that the county owned other land at Kansas City when the act of 1885 was passed is a circumstance proper for consideration in determining whether or not this legislative act conferred the alleged implied power. United States v. Railroad, 91 U.S. 72; Rupp v. Swineford, 40 Wis. 28. If it were simply a matter of doubt about this lack of power to purchase the proposed site, that alone would be a negative of the power. Lackland v. Railroad, 31 Mo. 185; Dillon on Mun. Corp., sec. 89. Revised Statutes, section 1199, never applied to buying ground for courthouses because that matter was specially covered by chapter 95 of Revised Statutes. State v. Green, 87 Mo. 583; Dewey v. Co., 42 Mich. 399; Griffith v. Carter, 8 Kas. 565. Said section 1199, Revised Statutes, was repealed by the act of 1883 and was not revived by the act of 1885 repealing the act of 1883. R. S., sec. 3148. (4) If article 2, of chapter 95, of the Revised Statutes, applies to Kansas City, then the approval of the proposed purchase of land and the pretended payment therefor was void also, because it was not for cash. Section 5329 contemplates a simultaneous order of the payment of the purchase money out of money then in the treasury when the order approving the location selected by the superintendent is made by the court. English v. Wilshire, 26 Ark. 454; Simpson v. Lauderdale Co., 56 Ala. 64; County v. Carter, 2 Kas. 116; County v. McFarlan, 82 Ill. 138. (5) The transaction enjoined was the purchase of a court-house site in direct violation of Revised Statutes, sections 5327, 5328, 5329, and all laws governing and regulating such purchases. (6) The provision of the statute requiring the county court to ascertain that the title to the land was good, is an imperative and a necessary prerequisite to its power to purchase; and the statutory mode of ascertaining that important and jurisdictional fact is exclusive and mandatory. Cooley on Tax. 215; French v. Edwards, 13 Wall. 506; People v. Supervisors, 51 N.Y. 401; Dryfuss v. Bridges, 45 Miss. 247; Monmouth v. Leeds, 76 Me. 28; Fowler v. Perkins, 77 Ill. 271; Griffith v. Follett, 20 Barb. 633; Hudson v. Mayor, 9 N.Y. 169; People v. Connelly, 4 Abt. Prac. (N. S.) 377; Pavement Co. v. Painter, 35 Cal. 699. (7) The county court is the agent of the county only to the extent and in the manner prescribed by law. So long as it continues in the narrow pathway allotted to it by legal enactments, its acts are valid; but whenever it steps beyond, its acts are void. County v. Wilson, 61 Mo. 237; County v. Cowan, 54 Mo. 234; Stein v. County, 48 Mo. 167; Ruggles v. Collier, 43 Mo. 353; Walcott v. County, 26 Mo. 272. (8) The county court and other county officials may be restrained by injunction from doing acts in their nature official, which are unauthorized and void. And this remedy has been frequently applied. Hayes v. Downs, 75 Mo. 250; State ex rel. v. Brassfield, 67 Mo. 331; Turner v. Stewart, 78 Mo. 480; Railroad v. Anthony, 73 Mo. 431; Towne v. Bowers, 81 Mo. 491; Bank v. Kercheval, 65 Mo. 688; State ex rel. v. Railroad, 87 Mo. 236; Book v. Earl, 87 Mo. 246; Board v. McComb, 92 U.S. 530. And this may be done at the suit of taxpayers. Book v. Earl, supra; Newmeyer v. Railroad, 52 Mo. 81; Matthis v. Cameron, 62 Mo. 504; Wagner v. Meaty, 69 Mo. 105. (9) The approval of the title by the circuit court was made on the third of January, and in another transaction. This proposed purchase was begun on the twenty-eighth of January. No certificate is claimed interim. If a certificate under an examination made twenty-five days before the purchase is a compliance with the condition, there is no reason why one made twenty-five years before should not be equally effectual. If outside proof that for the last month the title has not been changed can be substituted for a certificate, then outside proof may be substituted as to the whole title. The law cannot be thus frittered away.

OPINION

Norton, C. J.

Stripping the record in this case of its verbiage and redundancy, it discloses the following facts, viz: That the county court of Jackson county, at its May term, 1886, by an order duly made submitted to the qualified voters of said county, at an election thereafter to be held, a proposition to issue the bonds of the county to the amount of five hundred thousand dollars for the purpose of building a courthouse in the City of Kansas; that said election was held and a majority of the voters were in favor of said proposition, and afterwards said county court, by its order duly entered of record, declared that a majority of the voters at said election voted in favor of said proposition, and ordered and directed that said courthouse be erected, and said bonds issued; and further ordered that George R. Nelson be appointed to superintend the erection of...

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