State ex ret. v. County Court.
| Decision Date | 24 March 1890 |
| Citation | 33 W.Va. 589 |
| Parties | State ex ret. v. County Court. |
| Court | West Virginia Supreme Court |
MA NBA M US Motion to Quash.
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.
MA NBA M US--Discretion.
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.
The inferior tribunal may be compelled to act in such case, if it unreasonably neglects or refuses to co so, but if it does act, the propriety of its action, however erroneous and improper, can not be questioned or controlled by mandamus.
MANBAMUS Wmr of Error-Appeal.
Mandamus can not be permitted to usurp the place of a writ of error or appeal; nor will it lie when there is any other adequate and complete legal remedy.
MA NBA M US County Court Brido es.
Mandamus will not lie to compel the County Court, under the provisions of sec. 23 chap. 39 Code, to rebuild a county bridge which had been destroyed, when it appears that said Court has, under the provisions of chap. 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. MANDAMUS County Court Bridges.
In such case this Court will not by mandamus inquire into the regularity of the proceedings of the County Court establishing such bridge and altering the location of the former bridge.
7. MANDAMUS County Court Bridges.
Under the provisions of chap. 43 Code, the County Court may discontinue a bridge in the same manner that it may discontinue a public road.
J. B. Jackson, B. M. Ambler and C. T. Caldwell for plaintiffin error.
J. M. Jackson and J. G. McCluer for defendant in error. Snyder, President:
Writ of error to a judgment of the Circuit Court of Wood county, pronounced January 25, 1890, 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 and Elizabethtown Turnpike Company, constructed a turnpike road on the lower side of said river from Parkersburg to Elizabethtown 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 $25,000.00, and of which it has paid $3,000.00. Afterwards the County Court was officially notified by the Secretary of War of the United States, that said bridge when rebuilt should be fifty seven feet seven 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 locating 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 & O. R. R. Co., 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, fifty seven feet seven 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 Co., has been ccmpleted, 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 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 has 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 tailed 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 command 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 the 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 defendants. In Fisher v. Charleston, 17 W. Ya., at page 611 this Court says: And in another part of the opinion in the same case the Court says:" The defendant may move to quash the alternative writ, which is equivalent to a demurrer to it." Fromthis languageand the purport of the opinion, I infer that a motion to quash puts in issue not only the sufficiency of the alternative writ, but also the sufficiency of the petition on which such writ is based; and, therefore, if the defect, which the defendant seeks to take advantage of, is in the alternative writ, itself, and not in the petition, the formal mode of pleading is to demur and not move to quash, and vice versa if the defect is in the petition; but while this is the technical and formal mode of proceeding, the court will nevertheless treat a motion to quash the alternative writ, as the equivalent of a demurrer to such writ. The motion to quash in such case is not only the equivalent of a demurrer, but it reaches defects in the petition in like manner as such motion does the affidavit in an attachment. The motion to quash in this case, therefore, having all the effect of a demurrer and more, it is wholly immaterial whether there was or not, in fact, a demurrer in the record. Thus the only question to be determined in this case is, whether or not the court erred in overruling the defendants' motion to quash the alternative writ.
It is a well settled rule of pleading that a demurrer, or in a case like this, a motion to quash, admits as true only such allegations of the bill or writ as are well pleaded, and does not admit matters of law, legal conclusions and statutory construction. Dillon v. Barnard, 21 Wall. 430; United States v. Ames, 99 U. S. 35.
It is unquestionable that mandamus will lie to compel the performance of duties purely ministerial in their nature, and so clear and specific that no element of...
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