State v. Neville

• Decision Date: 23 May 1892
• Citation: 110 Mo. 345,19 S.W. 491
• Parties: STATE ex rel. WALNUT ST. RY. CO. v. NEVILLE, Special Judge.
• Court: Missouri Supreme Court

19 S.W. 491

110 Mo. 345

STATE ex rel. WALNUT ST. RY. CO. v. NEVILLE, Special Judge.

Supreme Court of Missouri, Division No. 1.

May 23, 1892.

EMINENT DOMAIN — REFUSAL TO APPOINT COMMISSIONERS — MANDAMUS — DEMURRER — JURISDICTION.

1. A motion for a peremptory mandamus, after return to the alternative writ, is in the nature of a demurrer, and admits all facts well pleaded in the return.

2. Proceedings in Missouri to condemn property to public use involve the exercise of judicial power.

3. Jurisdiction of the subject-matter is the power to hear and determine cases of the general class to which the proceeding in question belongs.

4. Where the trial court heard a petition for appointment of commissioners in a condemnation case, but refused it on the ground that it had no power to make the appointment, mandamus will not lie to reverse that ruling.

5. The functions of mandamus to judicial officers discussed.

(Syllabus by the Judge.)

Original proceeding in mandamus, on the relation of the Walnut Street Railway Company, against Neville, special judge of the circuit court of Greene county, to compel him to appoint commissioners in certain condemnation proceedings. Writ denied.

Jas. Baker and Jas. R. Vaughan, for relator. B. U. Massey, for respondent.

BARCLAY, J.

This is an original proceeding, on the relation of the Walnut Street Railway Company, seeking a peremptory mandamus to defendant, as special judge of the circuit court of Greene county, to require him to appoint commissioners in a certain proceeding in that court for the condemnation of property to public use. The facts on which our conclusion rests are mutually admitted. The relator and the Metropolitan Electric Railway Company are the owners of separate lines of street railway in Springfield, Mo. The former desires to extend its line to the public square, and in so doing to acquire by condemnation the right to pass along the tracks of the Metropolitan Railway Company for a distance of some 400 feet, under authority of a city ordinance to that effect. In furtherance of that purpose the relator, November 7, 1891, presented to the circuit court of Greene county its petition, setting forth in detail the authority under which it claimed the right referred to; that the acquisition of the joint use of said track, as proposed, was indispensably necessary to plaintiff; that the proposed road was for public use; that plaintiff had made, without avail, an effort to agree upon a proper compensation for such joint use of the said track, etc.; and praying said court to appoint three disinterested commissioners to assess the damages which said Metropolitan Railway Company might sustain in consequence of the establishment and maintenance of said railroad by plaintiff, as described, and for a judgment of condemnation for said joint use, as aforesaid. To the petition above outlined the Metropolitan Railway Company appeared and objected. A hearing followed, and, December 10, 1891, the court "did find and hold the law to be that said court had no power to appoint the commissioners prayed for," and "did deny said application to appoint" them, and "did then and there dismiss the said petition" at plaintiff's costs. Afterwards, plaintiff filed a motion for new trial, alleging error in the court's said rulings, which being overruled, it obtained leave to file a bill of...