State Ex Rel. Boggs v. County Court

• Court: Supreme Court of West Virginia
• Writing for the Court: Snyder
• Citation: 11 S.E. 72,33 W.Va. 589
• Parties: State ex rel. Boggs et al. v. County Court.
• Decision Date: 24 March 1890

11 S.E. 72
33 W.Va. 589

State ex rel. Boggs et al.
v.
County Court.

Supreme Court of Appeals of West Virginia.

March 24, 1890.

Mandamus—County Courts—Bridges.

1. In mandamus a motion to quash the alternative writ is not only the equivalent of a demurrer to such writ, but more; it puts in issue the sufficiency of the petition on which such writ has been issued.

2. Mandamus will not lie to control the exercise of the discretion of any court, board, or officer, when the act complained of is either judicial or quasi judicial in its nature.

3. The inferior tribunal may be compelled to act in such case, if it unreasonably neglects or refuses to do so, but if it does act, the propriety of its action, however erroneous and improper, cannot be questioned or controlled by mandamus.

4. Mandamus cannot be permitted to U3urp the place of a writ of error or appeal; nor will it lie where there is any other adequate and complete legal remedy.

5. Mandamus will not lie to compel the county court, under the provisions of section 23, c. 39, Code, to rebuild a county bridge which had been destroyed, when it appears that said court has, under the provisions of chapter 43, Code, decided to build a bridge across the same river 110 yards from the site of the former bridge, and thereby, in effect, deciding to change the location of the former bridge.

6. In such case the court will not, by mandamus, inquire into the regularity of the order of the county court establishing such bridge, and altering the location of the former bridge.

7. Under the provisions of chapter 43, Code,

[11 S.E. 73]

the county court may discontinue a bridge in the same manner that it may discontinue a public road.

(Syllabus by the Court.)

J. B. Jackson, B. At. Ambler, and C. T. Caldwell, for plaintiff in error.

J. M.Jackson and J. G. McLuer, for defendants in error.

Snyder, P. Writ of error to a judgment of the circuit court of Wood county, pronounced January 25, 1S90, in proceedings instituted in the name of the state, at the relation, and upon the petition, of F. C. Boggs and others, for mandamus to compel the county court of said county to repair and rebuild the bridge across the Little Kanawha river, at the foot of Market street, of the city of Parkersburg, in the said county. The material facts averred in the petition, and the exhibits filed therewith, are substantially as follows: The petitioners are citizens and tax-payers of Wood county. In 1848 the Little Kanawha Bridge Company, a domestic corporation, built a toll-bridge across the Little Kanawha river, at the foot of Market street, of the city of Parkersburg, in Wood county. In 1850 another corporation, under the name of the" Parkersburg & Elizabethtown Turnpike Company, " constructed a turnpike road on the lower side of said river from Parkersburg to Elizabeth-town, in Wirt county, and extending across said bridge to the foot of Market street, in said city of Parkersburg, which said road and bridge were used as a public highway. By an act of the legislature the said turnpike road, in 1868, so far as it lies in Wood county, was transferred to and became the property of said county, and has from that time to the present, under the supervision of the county authorities, been used and worked as a public highway. In 1881 the county court of Wood county purchased the said bridge from the said Little Kanawha Bridge Company, and a deed therefor was duly executed to said county court, and recorded in said county, and by an order of said court said bridge was made a free bridge, and it thereby became the property of the county, and a part of the Parkersburg and Elizabethtown turnpike road, and has so continued ever since. On July 10, 1888, the superstructure of said bridge was washed away by the high waters of said river; thereupon the county court of said county, by its order made August 28, 1888, contracted with the Wrought Iron Bridge Company to rebuild the bridge on the abutments of the former bridge, for which the county agreed to pay said company $25,000, and of which it has paid $3,000. Afterwards the county court was officially notified by the secretary of war of the United States that said bridge when rebuilt should be 57 feet, 7 inches, above low-water mark; that then the county court neglected and refused to rebuild and repair said bridge at the foot of Market street, and on July 2, 1889, without discontinuing or vacating said bridge, made an order lo-cating a bridge across said river at the foot of Juliana street, about 110 yards from the site of the old bridge. Subsequently, on the bill of the Baltimore & Ohio Railroad Company, the circuit court of the United States enjoined the county court from erecting a bridge at the foot of Juliana street, and thereupon the county court made another order, locating a bridge across said river at the foot of George street, about one mile above the foot of Market street. The bridge at the foot of Market street can be erected at the height required by the secretary of war, to-wit, 57 feet, 7 inches, above low-water mark, across said river, and good approaches had to the same from both the north and south sides of the river, at far less cost than to any bridge that may be built at any other point within the limits of said city. The iron-work contracted for with the said Wrought Iron Bridge Company has been completed, and is lying at the shops of said company in Ohio, and could be used to rebuild said bridge at the foot of Market street. The county court has contracted for erecting the stone work of the bridge at Juliana street, and that the records of the said court fail to show that any levy has been made to pay for the same. The petition then charges that said bridge at the foot of Market street has been out of repair for about two years, and that more than eight months have elapsed since the notification of the secretary of war in respect to the height at which said bridge must be built, yet the county court has failed and refused to repair and rebuild said bridge on the old site at the foot of Market street, and that the members of said court have publicly announced that they would not repair or rebuild said bridge on the said old location, but would build another bridge elsewhere in said city. The petitioners therefore pray, that a writ of mandamus be awarded, directed to the said county court, and the individuals composing it, "requiring them to repair and rebuild the bridge across the Little Kanawha river at the foot of Market street, of the said city of Parkersburg, and to cause the same to be placed in good repair and condition, " and for further relief, etc. On October 21, 1889, the said petition was filed in the circuit court, and said court on that day made an order awarding the alternative writ of mandamus, which writ was afterwards issued, and duly served on the defendants. The writ, both in its recitals and prayer, follows, substantially, the said petition. The defendants appeared, and moved the court to quash the said alternative writ, which motion the court overruled, and the defendants declining to make return or answer to said writ, the court, on the motion of the petitioners, awarded the peremptory writ, and defendants obtained this writ of error.

Some question was made in the argument whether there was a demurrer to, as well as a motion to quash, the alternative writ. The final order states that the court "is of opinion to overrule said motion and said demurrer, " but the record fails to show that any demurrer was entered by the defendant. In Fisher v. Charleston, 17 W. Va., at page 611, this court says: "If the petition...