The State ex rel. Crow v. Harrison

• Decision Date: 06 July 1897
• Citation: 41 S.W. 971,141 Mo. 12
• Parties: The State ex rel. Crow, Attorney-General, v. Harrison
• Court: Missouri Supreme Court

41 S.W. 971

141 Mo. 12

The State ex rel. Crow, Attorney-General, v. Harrison

Supreme Court of Missouri, First Division

July 6, 1897

Proceedings quashed.

Edward C. Crow, Attorney-General, and W. S. Pope for relator.

(1) The remedy is the proper one to pursue in this case. We have no statute in this State regulating the practice on proceedings by certiorari, and are to look to the common law for a guide in such cases. State ex rel. v. Slover, 113 Mo. 211; Railroad v. Morton, 27 Mo. 317. (2) The object of the writ is to keep inferior judicatories in the bounds of their jurisdiction and the writ would lie, though there be another remedy. State v. Dowling, 50 Mo. 134. (3) The order of the court, appointing the county institute board to act with the county commissioner for the year 1897 contains no statement by which it can be inferred the court in any manner advised with or received counsel or advice from the county commissioner about the appointments. The act of the legislature, Acts of 1893, page 255, section 10, requires such appointments to be made "by and with the advice of the county commissioner." The county court should appoint the institute board from among the men and women named by the county commissioner. (4) The record shows that on the twenty-sixth of April, 1897, the court met in special session, that only the judges and county clerk were present (no sheriff), and appointed a constable and members of the county institute board. No mention in the record of the county commissioner being present. Section 3430, Revised Statutes 1889, provides that "the president or any two judges of the county court may order a special term whenever the business and interests of the county may require it; and section 3431 requires notice of such special term shall be given to the judges who were absent when the same was ordered, and by advertisement placed up in five public places in the county, at least five days before the commencement of such term. The record should show affirmatively that such term was called and the notice given. The county court is a court of inferior and limited jurisdiction. There are no presumptions in its favor. It could not have convened legally without a compliance with sections 3430 and 3431, and could not have legally transacted any business when they did so meet. State ex rel. v. Moniteau Co. Ct., 45 Mo.App 387; State ex rel. v. Edwards, 104 Mo. 125; State ex rel. v. Mayor and Board of Aldermen, 57 Mo.App. 192; State ex rel. v. Smith, 101 Mo. 174.

Moore & Williams for respondents.

(1) Certiorari will not lie in a case of this kind. Such act of the county court is purely ministerial, and not a judicial proceeding, and therefore not the subject of review by writ of certiorari from the Supreme Court. In re Saline County Subscription, Phillip Thompson et al., 45 Mo. 52; Phelps Co. v. Bishop, 46 Mo. 68; State ex rel v. Edwards, 104 Mo. 125; 3 Am. and Eng. Ency. of Law, title "Certiorari;" Owens v. Andrew Co., 49 Mo. 372; Vitt v. Owens, 42 Mo. 512. (2) The writ performs the functions of an appeal, or writ of error, hence ordinarily it will not be granted when neither of these will lie. Britton v. Steber, 62 Mo. 370; Railroad v. Board of Equalization, 64 Mo. 294; State ex rel. v. Powers, 68 Mo. 320. (3) The record imports absolute verity as to the entries and orders made therein. There is no presumption against the regularity of the proceedings of the county court, or the holding of its special session, at which time the action complained of was had. State ex rel. v. Smith, 101 Mo. 174; Railroad v. St. Louis, 92 Mo. 160; State ex rel. v. Mayor of Neosho, 57 Mo.App. 192. (4) A motion to quash will lie. State ex rel. v. Dowling, 50 Mo. 134; In re Saline Co. Subscription, 45 Mo. 52; State ex rel. v. City of Kansas, 89 Mo. 34. (5) The petition shows that Lee Jordan is the real party in interest, and he should be the relator, as would be the case on an appeal. Foster v. Dunklin, 44 Mo. 216. (6) This action is brought to test the right to an office. The persons appointed as members of the institute board are not made parties, and this form of action will not lie to oust them from office. State ex rel. v. Chosen Freeholders of Camden Co., 1 Cent. Rep. 436. (7) The only thing necessary for the record to show is that the court made the appointment. The expression, "by and with the advice of the county commissioner," simply directs the county court to advise with him; the presumption is that the court did so. If they did not, their action would still be valid, as they have the appointing power.

Macfarlane, J. Robinson and Brace, JJ., concur. Barclay, P. J., concurs in the result for the reasons expressed by himself.

OPINION

Macfarlane, J.

On the application of the State at the relation of the Attorney-General, a writ of certiorari was issued from this court directing the respondents, who are the judges of the county court of Miller county, to certify to this court the record of their proceedings, as such judges, in the matter of the appointment of W. C. Howell and H. A. Wieneke as members of the "county institute board" of Miller county. The charge of the Attorney-General is that Lee Jordan is the school commissioner of Miller county and respondents as judges of the county court of said county at an alleged special term of said court, held on the twenty-sixth day of April, 1897, unlawfully and illegally appointed said members of the county institute board without the advice of the said Lee Jordan as county commissioner.

To the writ the respondents have made return accompanied with a certified transcript of the record and proceedings of said court in the matter of making such appointments, which is as follows:

"April Special Term, 1897. Monday, April 26, 1897. 1st day of term.

"Be it remembered that the county court met in special term begun and held at the court house in the town of Tuscumbia on the 26th day of April, 1897.

"Hon. W. M. Harrison, Presiding Judge.

"Hon. J. N. Dooley, Judge 1st Dist.

"Hon. T. J. Atwell, Judge 2nd Dist.

"W. M. Starling, Co. Clk.

"After Court had been opened the following proceedings were had."

Then follows the appointment of a constable to fill a vacancy in Equality township after which is the following entry:

"County Institute Board Appointed. It is ordered by the court that Wm. C. Howell of Ulmon and H. A. Wieneke of Olean be and they are hereby appointed members of the county institute board to act with the County School Commissioner for the year 1897, and that the clerk notify them of their appointment.

"Ordered that court adjourn until court in course.

"W. M. Harrison, Presiding Judge.

"And afterward at the regular May Term, 1897, of said county court of Miller county, Missouri, beginning the 3rd day of May, 1897, all of the above named judges of the county court being present, among other proceedings the following were had as appears by the records and files of said court:

"On Saturday the 8th day of May, 1897, being the 6th day of the term, the following petition was presented to the court:

"'In the County Court of Miller County, Mo.

"'To the County Court of Miller County:

"'The undersigned school commissioner of Miller county most respectfully prays that your honorable body will at once set aside and vacate the order by you made on the 26th day of April, 1897, in the appointment of Wm. C. Howell and H. A. Wieneke as members of the county institute board of said county of Miller, because said appointment was made without my advice as school commissioner, is an injustice to me, and was made without authority of law. Respectfully submitted.

"'Lee Jordan.'

"Which petition is indorsed on the back as follows: 'In the matter of the appointment of members of the Institute Board of Miller County. Application of Lee Jordan to have said order of appointment vacated. Filed May 8, 1897, W. M. Starling, Clerk.' And thereupon the said court caused to be made the following order and entry of record which appears on Page No. 495 of Book "K" of the county court records: 'Now at this day comes Lee Jordan, School Commissioner of Miller county, by T. B. Robinson, his attorney, and files his petition praying that the court vacate the order heretofore made appointing the members of the county institute board for the year 1897, and the court being fully advised in the matter and having duly considered the same, denies the prayer of the petitioner.'"

Respondents charge further that at the time of the appointment of the members of the county institute board the said Lee Jordan was present in court advising in the matter of such appointment.

Respondents file a motion to quash the writ upon the grounds: First. The Attorney-General had no authority to make the application at his own relation. Second. The application could only be made at the relation of the commissioner Lee Jordan. Third. The acts of the county court in making the appointments were ministerial and not judicial. Fourth. The county court had jurisdiction to make the appointment under the laws of this State.

Section 10 of the Act of 1893, relating to teachers' institute, contains this provision: "It shall be the duty of the county court in each county on or before the first day of May of each year, to appoint, by and with the advice of the county commissioner, two competent persons, who, together with the county commissioner, shall constitute the county institute board" Acts 1893, p. 255.

I. It is insisted in the first place that the Attorney-General under the practice governing the issuance of writs of certiorari, had no authority to apply for the writ at his own relation, for the reason that the subject-matters sought to be remedied pertain to private rights alone.

The objects of...