State v. Woodside

• Decision Date: 24 December 1913
• Citation: 254 Mo. 580,163 S.W. 845
• Parties: STATE ex rel. McMILLAN v. WOODSIDE, Judge, et al.
• Court: Missouri Supreme Court

163 S.W. 845

254 Mo. 580

STATE ex rel. McMILLAN v. WOODSIDE, Judge, et al.

Supreme Court of Missouri.

December 24, 1913.

Rehearing Denied February 10, 1914.

1. INJUNCTION (§ 143)—ISSUANCE—RIGHT TO ISSUE—NOTICE—JURISDICTION.

Rev. St. 1909, §§ 2517, 2518, provide that, before the issuance of an injunction to stay any proceedings, reasonable notice in writing shall be given to the adverse party or his agent within the state, or, if neither are within the state, by posting notice for 10 days in the office of the clerk of the circuit court where the suit is filed.

Held, that the sections are applicable only to injunctions sued out to stay a suit, judgment, or judicial proceeding, and that it is not a condition precedent to the jurisdiction of the circuit court to issue an injunction in other cases that any previous notice shall have been given to the adverse party.

2. COUNTIES (§ 196)—CONSTRUCTION—COUNTY COURT—JURISDICTION—STATUTES.

Rev. St. 1909, § 10,490, provides that, if the county court is of the opinion that a bridge is necessary, and that it shall be built at the expense of the county, the court shall determine in what manner and of what materials it shall be built and the probable cost, that it shall require the county highway engineer to estimate the cost according to any plan or plans ordered and approved by the engineer and report thereupon, when the court shall order the engineer to let the contract for building the bridge, and may provide for keeping the same in repair for not less than two nor more than four years. Section 10,496 declares that the court shall not pay the expenses of bridge building out of any revenue obtained later than the year of the contract, and, in using such funds, may not exceed the constitutional debt limit. Held that under such provisions the county court exercises two distinct and separate functions, one as to determining the necessity for bridges which is purely discretionary and exclusive and the other to contract for the work, in the exercise of which the court must act administratively and in subordination to the Constitution, and hence this power is subject to control if improperly exercised by the injunctive process of a court of equity in order to prevent the letting of a bridge contract in violation of the constitutional debt limit.

En Banc. Application for writ of prohibition by the State on relation of S. S. McMillan against L. B. Woodside, Judge, and others. Writ quashed.

A number of taxpaying and voting property owners and citizens of Pulaski county sued the judge of the county court and the highway engineer of that county, to restrain them from making and completing a contract for building a bridge and constructing the same across the Gasconade river to be paid for out of the revenue of the county at a cost of $8,000, all of which was threatened to be done by the making and letting of contract on the ensuing 6th day of June, 1913.

The equities set up were: That by these acts a debt would be saddled upon the county in violation of law, in that the amount of money so to be used was largely in excess of the revenues of the county under the constitutional limit and conditions prescribed for the creation of such indebtedness. Const. Mo. § 12, art. 10. That the defendant had failed to comply with any of the statutory conditions prescribed in the following act: "Sec. 10,490. If the county court be of the opinion that a bridge is necessary, and that such bridge shall be built at the expense of the county, said court shall determine in what manner and of what materials the same shall be built, and the probable cost thereof. It shall be the duty of the court aforesaid to require the county highway engineer to proceed to the spot where the bridge is to be built and make an accurate estimate of the cost of building the same according to any plan or plans ordered by the court and approved by the county engineer, or such as in his opinion may be best, and without delay make report thereof; and thereupon the said court shall order the county engineer to let the contract for the building of such bridge, and may also provide for keeping the same in repair for not less than two nor more than four years, to be determined by the county court." Other provisions are not material. R. S. 1909, § 10,490.

The petition prays, among other things, that the defendants be enjoined "from making or entering into such contract themselves for Pulaski county, and that it will enjoin and restrain the defendants, and each of them, from contracting for Pulaski county for the erection of said bridge, from agreeing to pay for the same from the revenue of Pulaski county, from drawing any warrants on the revenue of Pulaski county to pay for the same, from setting aside or appropriating any money to pay for said bridge from the revenues of Pulaski county, and from doing any act or thing tending toward such purpose and for general relief." Upon the presentation of a verified petition alleging the foregoing matter to Hon. L. B. Woodside, he awarded a temporary injunction upon the execution of a bond for $1,000, conditioned as required by law.

Thereupon an application for a writ of prohibition was made to this court, which embodied the foregoing petition for an injunction then pending in the circuit court of Pulaski county and the above order granting a temporary injunction, and alleged that the verification was insufficient, and that the notice given for the application for injunction was insufficient, and that the writ of injunction was awarded on an ex parte hearing. The application for prohibition then denied all the grounds alleged for relief in the injunction suit, and averred that the respondent L. B. Woodside, circuit judge, had no jurisdiction to grant the same; that the time fixed by him for answering, September, 1913, was an unreasonable delay; and the lapse of time before defendant in said suit could appeal would destroy the beneficial interest of petitioner. This application was made by a voting citizen and a property owner and taxpayer, who was not a defendant in the suit below. This court was pleased to grant its preliminary rule in prohibition on 8th of July, 1913. To which respondents made return, admitting the bringing of the suit by them in the circuit court and the orders made therein, and setting out the circumstances of the notice given of the application for temporary injunction, which were, in substance that the circuit judge was on the point of leaving his district for a vacation, and that, upon receiving notice from him of the place where the application could be heard, they at once gave notice to the defendants, who by diligence might have been present when the application was heard at Cuba, Mo., 9 o'clock a. m. June 4, 1913, at which point Judge Woodside was to take a train for his summer vacation.

Respondent L. B. Woodside made return that the acts complained of in the petition filed in his court were "ministerial acts, and not judicial"; that a prima facie case was made by the petition of violation of the Constitution and laws in this respect, and that, being possessed of jurisdiction in such cases, he deemed it his duty to grant the temporary injunction prayed; that he granted the writ after being advised by telegram that the defendants in that suit would not be present; "that, upon the issuance of said temporary writ, your respondent judge required that the plaintiffs therein would consent, and they did consent, to the holding of a special term of court in Pulaski county, within a short time, to try the issues therein raised by the injunction petition, if the defendants in said action so desired; and that your respondent informed counsel for defendants of such agreement and arrangement immediately after said granting temporary writ, and that he, as the judge of said court, stood ready and willing and would have called and held a special term of his court in Pulaski county if the defendants in the injunction had indicated to him that they so desired."

Respondents further set up that jurisdiction of the cause by the circuit court was apparent on the face of the petition, and the circuit judge was clearly within his power to act as such in granting the temporary injunction, and denied the other statement...