Shine, Presiding Judge, v. Kentucky Central Railroad Company
| Decision Date | 10 February 1887 |
| Citation | 85 Ky. 177 |
| Parties | Shine, Presiding Judge, v. Kentucky Central Railroad Company. |
| Court | Kentucky Court of Appeals |
APPEAL FROM KENTON CIRCUIT COURT.
COLLINS & FENLEY FOR APPELLANT.
HALLAM & MYERS FOR APPELLEE IN PETITION FOR REHEARING.
JUDGE HOLT DELIVERED THE OPINION OF THE COURT.
The appellee, the Kentucky Central Railroad Company, filed its petition in the Kenton county court against one Alonzo Graves, under the law providing for the condemnation of land for railway purposes. (Acts of 1881, vol. 1, p. 83.) It provides that this may be done when the property is necessary for such use, and can not be obtained by contract with the owner; also that commissioners shall be appointed to award to the owner the value of the land and damages, if any; and upon the filing of the report he is to be summoned to show cause, if he have any, against its confirmation; and if exceptions to it are filed, "the court shall forthwith cause a jury to be impaneled to try the issues of fact" made thereby.
In this instancethe petition avers that the condemnation of the property is necessary for the extension of the railroad from its then terminus in the city of Covington to the Ohio river; and that it had endeavored to contract with Graves for it, but had been unable to do so. The answer puts all this in issue, save that no agreement of purchase had been made, and states affirmatively that the land could be obtained by contract at a fair price; also that the appellee had no right to maintain the proceeding, as its road had, by a decree of the Federal Court, been placed in the hands of a receiver.
The necessary commissioner's report was filed, fixing the value of the property and the resulting damages; and exceptions having been filed to it, the appellee moved the court to impanel a jury to try the issues thus formed, while Graves, who had filed an exhibit showing the appointment of the receiver, moved the court to dismiss the proceeding, upon the ground that the appellee had no right to sue. The first motion was overruled, and the last one sustained, the judgment allowing Graves his costs.
This proceeding was then filed in the Kenton circuit court by the appellee against the appellant, the judge of the Kenton county court, to compel him, by mandamus, to impanel a jury and try the case which he had dismissed.
It is urged upon behalf of the appellee, that the dismissal was, in effect, a refusal to proceed further with the case; and that, as is true, there need not be a direct refusal to do so, to authorize the writ; but that it is sufficient if such circumstances appear as satisfy the court that such was the intention. Various reasons were presented by the answer why the mandamus should not issue. We shall notice but two of them.
Section 477 of the Civil Code provides: "The writ of mandamus, as treated of in this chapter, is an order of a court of competent and original jurisdiction, commanding an executive or ministerial officer to perform an act or omit to do an act, the performance or omission of which is enjoined by law."
This provision relates only to the acts or omissions of ministerial officers, vested with no discretion, and does not restrict the issual of the writ to them. True, courts will not interfere with the exercise of discretionary power; but where an officer or inferior judicial tribunal, vested with it, refuses to exercise it at all, or act in any manner, they will, by mandamus, set him or it in motion, without, however, controlling the direction. The judgment in such a case must be left free to act, and reach such a result as it deems proper.
Thus mandamus will lie to compel a judge to act upon a bill of exceptions; or to receive a verdict; or to try a cause, or to hold a court. If this were not so, a denial of justice would result. (Clark v. McKenzie, &c., 7 Bush, 523; Commonwealth, etc., v. Boone County Court, 82 Ky., 632.) In this instance however, the writ should have been refused for two reasons at least.
Unquestionably the action of the county court was judicial. It did not refuse to act. It did act, as shown by the copy of its orders filed with the petition, and dismissed the proceeding upon the ground that the appellee could not maintain it, owing to the appointment of the receiver.
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