State At the Relation of Harrison v. Hill
| Decision Date | 02 March 1923 |
| Citation | 249 S.W. 693,211 Mo.App. 623 |
| Parties | THE STATE OF MISSOURI at the relation of FRANK B. HARRISON, JOHN CAMERON, JOHN WINKLEMAN, JAMES CAMERON, WILLIAM WINKLEMAN, THOMAS JOYCE, NANCY WELLS, W. E. BATES, CHARLES WINKLEMAN, FRANK BATES and JAMES JOYCE, Relators, v. G. W. HILL, GEORGE CANNON, HENRY D. VOSS, JR., JOSEPH WOOD, and SAMUEL HAMMOND, Respondents |
| Court | Missouri Court of Appeals |
PEREMPTORY WRIT AWARDED.
Plantz & Lamet, C. T. Llewellyn and John M. Dawson for relators.
The Board of Supervisors duties as to calling an annual meeting or annual election are purely ministerial there can be no two options on the proposition. "A ministerial act may be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or exercise his own judgment upon the propriety of the act to be done. Black Law Dictionary and cases cited; 5 Words and Phrases (1 Series) p. 4523. Mandamus lies to compel ministerial duties. The recognized case of Marbury v. Madison, by chief Justice MARSHALL that mandamus would lie or not is to be determined "not by the office of the person to whom the writ is directed, but by nature of the thing to be done." Mandamus lies to complete the performance of ministerial duties the nature of the act to be done here under sections 4600-4603, Revised Statutes 1919, are purely ministerial. Mandamus lies to compel the president of the counsel of the city of St. Louis to sign a house bill. State ex rel. v Meier, 143 Mo. 439. Issuing processes is a ministerial act. 5 Words and Phrases (1 Series), p. 4524. Mandamus lies to compel the Secretary of State to perform a ministerial act--to issue private bankers certificates. State ex rel v. Cook, 174 Mo. 100. Ministerial acts defined. 3 Words and Phrases (2 Series), pp. 395-396-397-398. The mandate of section 4603, Revised Statutes 1919, is for respondents to call the annual election, or annual landowners' meeting without regard to, or the exercise of, their own judgment upon the propriety of the act of so calling said annual meeting or annual election. Words and Phrases (2 Series), p. 296, and cases cited.
T. L. Montgomery for respondent.
(1) Mandamus is an extraordinary remedy and one who seeks its aid must show himself to have a clear legal right to the performance of the particular act the doing of which he seeks to compel. Unless relator's right thereto is clear, plain, and not doubtful, the writ should be denied. State ex rel. Kimbrell v. Becker, Sec. State, 237, S.W. 117, Decided by Sup. Court in Banc, Jan. 14, 1922; State ex rel. Davis v. Edwards et al., 206 Mo.App. 496; State ex rel. Hudson, 226 Mo. 239; Adair Drainage District v. O. K. Railroad, 280 Mo. 244. (2) The levee district was organized in the year 1903, under article 7, chapter 122, Revised Statutes 1919, and as to the time of calling the landowners' meeting that law governs. The meeting therefore should be called under that act. The levee district has never re-organized under Acts of 1913. The rights of the district are reserved by section 53, Acts 1913, p. 320, also same law section 4650, Revised Statutes 1919. Secs. 52 and 53, Acts 1913, p. 320; Revised Statutes of Missouri 1919, sections 4649 and 4650; State ex rel. Kidder v. Inter-River Drainage District, 246 S.W. 282; State ex rel. v. Drainage District, 269 Mo. 459; State ex rel. Hill v. Pettingill, 270 Mo. 31. (3) The law requiring the calling of the landowners' meeting is governed by the Act under which the district was incorporated. This law provides "Every year after the election of the first Board of Supervisors at such time and place in said district as the Board of Supervisors may designate and upon not less than 15 days' notice, the owners of the lands in such district shall meet and elect one Supervisor therefor in like manner as in the preceding election, who shall hold his office for five years, and until his successor is elected and qualified" . . . Section 8363, Revised Statutes 1899. This section refers to section 8256 of the same revision, the part of which is quoted above. The italics is mine. (4) The alternative writ does not state facts sufficient to justify the awarding of the peremptory writ, because it is predicated upon a law not applicable to the case made. See Authorities cited under paragraph 2, supra. (5) The annual meeting has been called by respondents for March 31, 1923, and fully complies with the Statute authorizing it to be called, and the peremptory writ should be denied. (6) Mandamus will not lie to compel the exercise of a discretionary power in a given manner. 26 Cyc. 158; State ex rel. v. Bolts, 151 Mo. 362; United States v. Guthrie, 17 Howard, 304. "It is elementary that mandamus is a discretionary writ--issuing only in the exercise of a sound (i. e., judicial) discretion. It will issue to coerce action but not to regulate or control a discretion reposed by law in an official while acting. The thing the writ is aimed at is the performance of a ministerial duty "imposed by law." State ex rel. v. Hudson, 226 Mo. 265; State of Missouri v. Andrew Johnson, 4 Wall. 498. It will not lie to compel the performance of an official act whether judicial or administrative which involves the exercise of a large measure of discretion. State ex rel. Hutton v. Scott County Court, 197 S.W. 348; State ex rel. v. West, 272 Mo. 304; State ex rel. v. Wurdeman, 187 S.W. 259; State ex rel. v. Nortoni, 269 Mo. 453; State ex rel. v. Holtcamp, 267 Mo. 412. (7) The word "shall" as used in the Statute on which the alternative writ is based, does not make the Statute mandatory as to time. If the Supervisors fail to call in the month of February, this does not make the call or the election void. The statute is there used as to time and is directory under all the authorities. State ex inf. v. Talty, 166 Mo. 559; State ex inf. v. Faylor, 208 Mo. 452-3; 2 Spelling on Extraordinary Remedies (2 Ed.), secs. 1384, 1385; Southerland on Statutory Construction, sec. 212-512; Holmes v. Loan Association, 128 Mo.App. 329, 335-6-7; Riesterer v. Land & Lumber Co., 160 Mo. 141; 14 A. C. J. Title Corporations, p. 52; In re Hammond, 139 F. (U.S.) 898. (2) While the officer may be compelled to exercise his discretion, he cannot be compelled to exercise it in a given manner. State ex rel. v. Jones, 155 Mo. 575; State ex rel. Gregory, 83 Mo. 136; State ex rel. Hathaway v. State Board of Health, 103 Mo. 28 and 29. It is submitted that the meeting has been called. The respondents have acted in good faith in their sound discretion under existing conditions in the interest of the district, as well as relators, and should be required to do no more. 18 R. C. L., p. 116, secs. 28, 30 and 38; Adair Drainage District v. O. K. Railroad, 280 Mo. 244; State ex rel. v. Hudson, 226 Mo. 239; State ex inf. v. Kansas City Gas Co., 254 Mo. 515.
MANDAMUS. ORIGINAL PROCEEDING.
--Mandamus. Relators are the owners of certain lands situated in the Des Moines and Mississippi Levee District No. 1, Clark County, Missouri. They seek a writ of mandamus to compel the respondents, who compose the Board of Supervisors of the District, to call an annual meeting of the landowners in the district, as is required and provided by article 9, chapter 23, Revised Statutes 1919, and that said meeting be called in February, 1923, or as soon thereafter as time will permit, as provided by sections 4600 and 4603 of said article and chapter.
It is alleged in the application for the writ that the district was regularly incorporated by the circuit court of Clark county. Missouri, in the year of 1903 under the provisions of article 7, chapter 122 of the Revised Statutes of Missouri 1899, now article 9, chapter 28 of the Revised Statutes of Missouri, 1919, and that from the time of the incorporation of the district the corporation has been operating under the provisions of said statutes and the acts amendatory thereof; that the respondents are the duly elected and qualified members of the Board of Supervisors of the district; that the annual meeting of the landowners has heretofore been held in February of each year, at which time one member of the Board of supervisors has been elected for a term of five years, as provided in said statutes, and in the manner provided by sections 4600 and 4603 of the Revised Statutes of 1919; and that the month of February, 1923, is the month of the year when the Board of Supervisors are required by law to call the annual meeting of landowners, as provided in the sections of the statutes last referred to.
It is further averred that the respondents refused to call said landowners' meeting in the month of February 1923, although the relators on February 3rd filed written demand upon said respondents to call said meeting in the month of February, as required by law; that the respondents held a meeting on February 5, 1923, but refused to call said landowners' meeting in the month of February or at any other time.
The respondents by their return to the alternative writ, after admitting that the district was organized under the provisions of article 7, chapter 122 of the Revised Statutes of 1899, avers that the district was never reorganized under the Act of 1913, which is article 9 of chapter 28 of the Revised Statutes of 1919. The return denies that the Board of Supervisors are required to hold the annual meeting in the month of February, and further denies that the Board of Supervisors is bound by the provisions of sections 4600 and 4603 referred to; that the annual meeting of the landowners is not affected by the provisions of article 9, chapter 28 of the Revised Statutes 1919, of which sections 4600 and ...
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