State ex rel. Dobbins v. Sutterfield

• Decision Date: 31 October 1873
• Citation: 54 Mo. 391
• Parties: STATE OF MISSOURI, ex rel., JAMES T. DOBBINS, and three hundred other citizens of Reynolds Co., Mo., Defendants in Error, v. ALLEN SUTTERFIELD, et al., Justices of Reynolds County Court, Plaintiffs in Error.
• Court: Missouri Supreme Court

54 Mo. 391

STATE OF MISSOURI, ex rel., JAMES T. DOBBINS, and three hundred other citizens of Reynolds Co., Mo., Defendants in Error,

v.ALLEN SUTTERFIELD, et al., Justices of Reynolds County Court, Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1873.

Error to Reynolds Circuit Court.

J. L. Detchemendy, on motion to dismiss.

I. The motion to dismiss ought not to be sustained, because there is a final judgment of the Circuit Court of Reynolds County, Missouri, from which the plaintiffs in error have appealed. The cases of Dunklin County vs. District Court, 23 Mo., 449, and the State vs. Lafayette County Court, 41 Mo., 221, and other cases decided by this court have no application, for the plaintiffs in error in the case at bar, are not asking for the remedy by a writ of mandamus, but for a review of an erroneous judgment of an inferior court, by the mode known to the law, and of which this court has full and complete jurisdiction. The statutes do not make any discrimination or difference between a writ of mandamus to remove county seats and any other cause or party or parties whatever, as to the right of appeal. (State vs. Bollinger Co. Court, 48 Mo., 475, and cases there cited.)

II. A county seat cannot be removed, “unless it appears, affirmatively, that,” two thirds of all the legally registered voters of the county, at a general election, have “actually” voted in favor of such removal. (Const. Mo., Art. 4, § 30; Wagn. Stat., 405, § 22; State vs. Clark Co. Ct., 41 Mo., 44; Cocke vs. Gooch, Sup. Ct., Tenn. [April Term], 1871.)

Chase & Howell, and Finkelnburg & Rassieur, for Defendants in Error, on motion to dismiss.

I. The action of the court below ordering the appointment of commissioners, was not a final judgment or decision upon which a writ of error will lie. It was an incidental and collateral judgment or order, while the principal proceeding was in progress and remained unfinished. The main proceeding was the statutory one for removal of seats of justice, and the order appointing commissioners, so far from being the last is one of the first steps in this proceeding. (Tetherow vs. Grundy Co. Court, 9 Mo., 118; State vs. Clark Co., 41 Mo., 44; George vs. Craig, 6 Mo., 648.) The statute provides (§ 29) that the commissioners shall report to the Circuit Court, whereupon the Circuit Court may approve such report, and if it is likewise approved by the County Court, then it becomes a finality and not before. If an appeal would lie at all upon such a proceeding, it would only lie in case of a final judgment. (Wood vs. Phelps Co. Court, 28 Mo., 119.)

II. But the law does not contemplate any appeal or writ of error in such cases at all. (Wood vs. Phelps Co. Court, 28 Mo., 119; Tetherow vs. Grundy Co. Court, 9 Mo., 118.) And plaintiffs in error cannot do, by an indirect proceeding in this case, what the law does not permit them to do directly. The vote was sufficient, although there were not two-thirds of all the votes cast at said election, there being two-thirds of all those who voted on this proposition. All those who did not vote on the proposition of removal are presumed to acquiesce. (State vs. Binder, 38 Mo., 450; State vs. Mayor, 37 Mo., 270; Dil. Mun. Corp., 65; Rex vs. Foxcroft, 2 Burr., 1017.)

NAPTON, Judge, delivered the opinion of the court.

Dobbins and three hundred other citizens of Reynolds county, applied to the Circuit Court of that county for a mandamus on the county justices, to appoint commissioners to select a site whereon to locate the seat of justice.

To the writ, which was issued, the County Court returned that at the general election held on the 5th of Nov., 1872, the proposition to remove the seat of justice of Reynolds county from its present location, did not receive “two-thirds of the legally registered votes of Reynolds county,” nor were two-thirds of the legal voters of said county polled at said election as appeared by the returns of said registration and election; that at a registration held for said county within 60 days preceding the 10th day prior to said Nov. 5, 1872, six hundred and ninety-four (694) voters legally registered in said county; and that the proposition to change the county seat received only 244 votes out of 694 legally registered voters, and out of 547 votes actually polled at the said election.

As a further answer, the court averred, that there had not been raised by a tax, sufficient money from the people to pay for all the lots and improvements sold by the county at Centreville, the present seat of justice, which had been located for twenty-eight years past, and was within five miles of the center of Reynolds county, and that no petition for the removal of said county seat had been presented within ten years after said seat of justice had been located.

This return on demurrer, or rather on a motion to strike it out and disregard it, was held insufficient, and a peremptory mandamus was awarded. To this judgment a writ of error, was taken.

A motion is made in this court to dismiss the writ of error, because there was no final judgment in the case, and to sustain this, various authorities are cited to show that a writ of error only lies on a final judgment, and that this judgment is not final.

But there is no force in this objection. The judgment of the Circuit Court ordering the peremptory mandamus is the end of the case, so far as that court is concerned. Its jurisdiction is certainly exhausted, and the question it decided is gone forever from its control. That a proceeding is collaterally going on, still pending in the County Court in regard to the establishment of the county seat of Reynolds county is a fact, which does not impeach the finality of the judgment of the Circuit Court on the mandamus. What is meant by a final judgment is, that it is final so far as the court which rendered it is concerned, and that court is one to which a writ of error will lie to this court.

It has been frequently held by this court that in proceedings for partition, an appeal would not lie from a judgment quod partitio fiat, because it was virtually interlocutory in its character, and might, upon the coming in of the commissioners appointed to make the partition, be ultimately disregarded. The judgment in that case is not final, as the court in which it is rendered still proceeds with other branches of the same case. But a judgment of peremptory mandamus in a proceeding or application, which in many respects is like any other civil suit, and is attended or may be attended with all the forms of pleading and trial of issue incident to any other action, is a final judgment in that proceeding, and is not the less so because what may be done by the court against which it is issued, in pursuance of the mandamus or otherwise, may still be pending. This point was so ruled in McVey vs. McVey, 51 Mo., 406, and in Strouse vs. Drennan, 41 Mo., 289, and is not in conflict with the decision referred to of Tetherow vs. Grundy county, 9 Mo., 118.

The question remains whether the County Court in deciding on the construction of the statute regulating their action in regard to this matter was wrong; assuming that the rule laid down in Castello vs. St. Louis county, 28 Mo., 259, is correct, and that where the inferior court, on a preliminary question arising on a statute, misconstrues it, this court may compel by mandamus the inferior court to proceed with the case.

The constitution of this State (Art. IV, § 30) says: “The General Assembly shall have no power to remove the county seat of any county, unless two-thirds of the qualified voters of the county, at a general election, shall vote in favor of such removal.”

The statute on the subject (Wagn. Stat., 405, § 22) says, after providing for an election: “If it shall appear by such election that two-thirds of the legally registered voters of said county are in favor of the removal of the county seat of such county, then the County Court shall appoint five commissioners,” etc.

In this case, as it appears from the return of the County Court to the mandamus, the registration immediately prior to the election showed that there were in Reynolds county 694 voters, that 547 of these duly registered voters actually voted at the election, and only 244 voted for the removal of the county seat. It appears from the statement of the...