State ex rel. West v. Justices of the Cnty. Court of Clark Cnty.

• Decision Date: 31 March 1867
• Citation: 41 Mo. 44
• Parties: STATE OF MISSOURI ex rel. JOSEPH WEST et als., Petitioners, v. THE JUSTICES OF THE COUNTY COURT OF CLARK COUNTY et als., Defendants.
• Court: Missouri Supreme Court

41 Mo. 44

STATE OF MISSOURI ex rel. JOSEPH WEST et als., Petitioners,

v.THE JUSTICES OF THE COUNTY COURT OF CLARK COUNTY et als., Defendants.

Supreme Court of Missouri.

March Term, 1867.

Suggestion for writ of Prohibition.

Dryden, for petitioners.

From and after the taking effect of the new Constitution on the 4th July, 1865, a county seat could not be removed except on the vote of two-thirds of the voters of the county having the qualifications prescribed by sec. 3, art. 2. of Constitution--G. S. 24. The 3d sec., art. 11, of Constitution (G. S. 42) repeals all statutes inconsistent with the provisions of said Constitution. The 12th sec. of act of 1855 concerning removals of seats of justice, which prescribes the qualifications of voters, and the 14th section of the same act, which fixes the majority by which the question shall be determined, are inconsistent with the provisions of the 30th sec. of the 4th art. of the Constitution, which provides as well a different qualification of voters as a different majority. (For act of 1855, see R. C. 1855, p. 515.)J. G. Blair and D. A. Day, for defendants.

The writ of prohibition can only issue in cases of want of jurisdiction, encroachment of jurisdiction, or conflict of jurisdiction by inferior courts--3 Black. Com. 112, 113; 6 Bac. Abr. 581-7; 2 Inst. 607; 9 S. & M. (Miss.) 623; 3 Bulst. 49; 2 Sell. Prac. 312; 2 Ired. 183; 1 Hill, 195; 2 Hill, 367.

If the inferior court have jurisdiction in whole or in part, the writ will not issue after judgment; nor will it issue where the proceedings are simply defective or erroneous--2 Sell. Prac. 312; 2 D. & E. 473; Cowp. 424; 9 S. & M. (Miss.) 623; 2 Metc. 296; 7 Wend. 518; 5 Pike (Ark.) 23; 2 Hill, 363; 8 Bac. Abr. (Bouv.) 218; Burr. 2036; Doug. 378. Nor will it issue unless the proceedings are actually depending in the inferior court and the relators actually endangered from some act to be done in the future. It cannot and will not issue to restrain or prohibit it from doing a past act; its office is a remedy for future acts. The suggestion does not show any act the court can or is about to commit--2 Sell. Prac. 312; 38 Mo. 297.

It is a judicial writ addressed to a judicial officer alone, and to restrain a judicial and not an administrative or ministerial act--1 Hill, 195; 2 Hill, 367; 2 Ired. 183.

If it be contended that the court had the power to make the order of removal, then it is submitted that its power as a court then became exhausted, and, it became functus officio; and there was by law no act that the justices, as a court, could further do in the premises, and no writ would lie--2 Hill, 14.

We submit, however, that the seat of justice became located by operation of law upon the casting up and arranging of the votes, and that the order of the court was unnecessary and is a nullity, and in nowise affected or endangered the relators, and hence is not the subject of prohibition--R. C. 1855, § 14, p. 516.

As the writ will not lie to restrain or prohibit anything but a judicial act, we hold that defendants Bartlett and Jackson are improperly joined in the suggestion--1 Hill, 195; 2 Hill, 367; 2 Ired. 183; 9 S. & M. (Miss.) 623.

The County Court unquestionably acquired jurisdiction of the subject matter when the petition was filed, and the appointment of commissioners under the statute of 1855 was regular and right; and the location of the seat of justice under said law, and the taking of conveyances to the county for lands donated, and the examination of titles by the circuit judge, and his certifying the same to the County Court, and its order for an election, all of necessity had to conform to the law of 1855--G. S. 1865, § 7, p. 76; Id. § 3, p. 883.

The only point of real difficulty then is as to whether the 3d section of the 2d article of the new Constitution repealed the law of 1855 with reference to removal of seats of justice. We hold that it did not, for the following reason: because this law of 1855 is not inconsistent with the Constitution--Const. § 3. art. 11, G. S. 1865, p. 42.

Upon this point we submit, 1st, that under the law of 1855, land-tax paying and householding inhabitants could vote, but not all such; 2d, that under the new Constitution they can also vote, but not all such.

By the letter of the law of 1855, § 14, p. 516, all land-tax paying and householding inhabitants were voters--even women, minors and negroes, if they paid a land tax or were householders, were qualified voters according to the letter of that law; and this could only be prevented by construing the law to mean “land tax payers and householders qualified to vote under the then existing laws of the State.” We submit that the Legislature had the power to increase or diminish the number of voters by restrictions, &c., at any time. What the Legislature might have done the Convention did do, to-wit, reduce the number of imposing restrictions, but still leaving the same class of persons qualified to vote, viz., those who paid tax on land and were householders, and none others.

The only point now to notice is the 30th section, article 4, of new Constitution--G. S. 1865, p. 32. This section prohibits the Legislature from moving county seats unless two-thirds of the qualified voters vote therefor at a general election. In view of the fact that there has heretofore been two modes of removal, one by that body and one by our courts a restriction or prohibition of one would not be a restriction or prohibition of the other. Had the Convention entirely prohibited the Legislature from removing, would that have prohibited the courts? This certainly could not be pretended.

The granting of the writ is discretionary with the court--2 Sell. Prac. 23 Ala. 94. Where a doubt exists, no writ will issue.

HOLMES, Judge, delivered the opinion of the court.

This is a suggestion accompanied with an exemplification of the record of the County Court of Clark county, filed in this court by the relators, supported by affidavit, and praying for a writ of prohibition against the justices of the County Court of said county, and against the commissioner appointed by the court to select a site for a seat of justice of said county, and the contractor with the court for the erection of county buildings at the place selected, to restrain them from further proceeding in the matter of a removal of the seat of justice of said county, on the ground that the court was exceeding its jurisdiction.

The case is submitted upon demurrer to the petition, from which, (together with the exemplification of the records) it appears that a petition signed by some of the citizens of the county had been presented to the County Court in June, 1866, upon which the court, on the 2d day of October, 1866, made an order submitting the question of a removal of the seat of justice to the voters of the county at a general election to be held on the 6th of November following; that a vote was taken accordingly, and, there being a majority of the voters in favor of the removal, the court proceeded to make orders appointing a commissioner, appropriating money, and contracting for the erection of county buildings at the place selected; and that the relators, as citizens of the county and owners of real estate in the town of Cahoka, then the seat of justice, appeared and moved the court to set aside and vacate these orders, and that their motions were overruled.

All these proceedings on the part of the court took place after the general statutes of 1865 went into operation, though the petition had been presented before. The defendants contend that the proceedings were to be governed by the previous statute of 1855. This position cannot be sustained. The statute of 1865 on this subject was in force when the first action of the County Court was had upon the petition. This was a new statute covering the whole of the same subject matter of the previous act, which was thereby suspended and repealed. The former special act providing for a change of the seat of justice from Waterloo to Cahoka had been exhausted by the completion of the removal made under it. The proposition for still another removal fell under the general statutes.

The act of 1865 (G. S. 1865, ch. 36) gave the County Court power to proceed upon a petition of one-fourth of the voters of the county to order the question of a removal of the seat of justice to be submitted to the qualified voters of the county at the next general election, in the manner therein specified, and to appoint five commissioners to select a site for a new seat of justice if it should appear that “two thirds of the legally registered voters of the county” were in favor of such removal. The commissioners were to report their proceedings to the Circuit Court, accompanied with the evidence of the title to the land selected for such site, and the judge of that court was to certify his approval of the title o the County Court; and thereupon, if the court should believe that the most suitable place had been selected, it was then to become ...