The State ex rel. Powell v. Shocklee
| Decision Date | 27 November 1911 |
| Parties | THE STATE ex rel. S. F. POWELL et al. v. J. W. SHOCKLEE et al., Judges of County Court of Montgomery County |
| Court | Missouri Supreme Court |
Writ quashed.
P. H Cullen for relators.
(1) The county court did not have power to order all the county officers, courts and public records removed from the county seat, and the record should be quashed. This contest has been before this court several times before. State ex rel. v Elkins, 130 Mo. 9; State ex rel. v. White, 162 Mo. 533. (2) The county court has no power to select a temporary county seat, except in cases where the seat of justice shall have been destroyed by erosion of the banks of any river. The specification of this particular cause by a familiar rule of construction excludes all others. R. S 1909, sec. 3674. (3) The order made by the county court of Montgomery county operates to remove the county seat and the county court has no jurisdiction to make such an order. Constitution, art. 9, sec. 2. Even the Legislature of the State is by express constitutional provisions prohibited from passing any local or special law locating or changing county seats. Constitution, art. 4, sec. 53. (4) Under the Constitution and laws of the State, judicial power is vested in the county courts. Constitution, art. 6, sec. 36; Benton Co. v. Morgan, 163 Mo. 661; R. S. 1909, art 5, chap. 35. (5) The office of a writ of certiorari is to bring to a superior court for review the record and proceedings of an inferior court, an officer, or a tribunal exercising judicial functions, to the end that the validity of the proceedings may be determined, excesses of jurisdiction restrained, and errors, if any, corrected. It is not essential, however, that the proceedings should be strictly and technically judicial in the sense in which that word is used when applied to courts of justice, but it is sufficient if they are quasi judicial. It is enough if they act judicially in making their decision, whatever may be their public character. Herrick v. Arbela, 54 Iowa 340; Welch v. Wetzel County Ct., 29 W.Va. 63; State ex rel. v. Johnson, 138 Mo.App. 314; State ex rel. v. Elkins, 130 Mo. 90; Snoddy v. County of Pettis, 45 Mo. 361; Owens v. County Court, 49 Mo. 372; State ex rel. v. County Court, 47 Mo. 594. (6) The terms "seat of justice" and "county seat" are synonymous, and as used in our Constitution and laws mean the place where the courthouse and county officers are located, the place where the courts are held and the records kept. Babcock v. Hahn, 175 Mo. 139. (7) Section 10,365, as amended by laws of 1909, which undertakes to vest the county court with power to locate the recorder's office at some place other than the county seat, is unconstitutional and void. Constitution, art. 4, sec. 53; Constitution, art. 9, sec. 2; Babcock v. Hahn, 175 Mo. 136.
Harry C. Black for respondents; W. M. Williams of counsel.
(1) Relators are not entitled to maintain this proceeding. The only interest possessed by them is that which they have in common with every other citizen and taxpayer of the county. They do not come within the rule authorizing a taxpayer to intervene where proceedings are about to be taken which will increase or affect his property rights. It does not appear that they reside at Danville or will be inconvenienced or affected injuriously in any manner by the removal of the records and county officers from that place. 4 Ency. Pl. and Pr. 162; State ex rel. v. Wilson, 129 Mo.App. 247; 4 Ency. Law 162; State ex rel. v. Ayers, 116 Mo.App. 90. (2) The county court, in providing a building or house for the safe-keeping of the county records and offices for the transaction of the county business, acts simply as the agent or representative of the county, and its proceedings are administrative and ministerial, and not judicial. Certiorari will not lie to review ministerial acts of the county court. State ex rel. v. Clark County, 41 Mo. 44; In the Matter of Saline County Subscription, 45 Mo. 52; Phelps County v. Bishop, 46 Mo. 68; Hockaday v. Newsom, 48 Mo. 196; State ex rel. v. Harrison, 141 Mo. 12; State ex rel. v. White, 162 Mo. 533; State ex rel. v. Elkins, 130 Mo. 90; State ex rel. v. Reynolds, 190 Mo. 588. (3) The order of the county court directing the transfer, temporarily, of the recorder's office and the deed records therein, for safe-keeping, to the courthouse in Montgomery City, is expressly authorized by the statute, under the conditions existing at Danville. R. S. 1909, sec. 10365. This statute is not in conflict with section 2, article 9, of the Constitution, concerning the removal of a county seat. It simply provides for the temporary safe-keeping of valuable county records, in which every property-owner is interested, in an emergency, until suitable buildings can be provided at the permanent seat of justice. This is not prohibited by the Constitution, which must receive a construction that will not lead to unreasonable consequences or results that will deprive the counties of the right to temporarily safeguard and protect their records when the necessity for such action arises. State v. Bixman, 162 Mo. 34; Cooley's Constitutional Limitations (7 Ed.), 108; Lewis's Sutherland on Statutory Construction (2 Ed.), 488. (4) The county court did not undertake to remove the county seat. An emergency arose in consequence of the burning of the courthouse that required the county court to provide temporary offices for the transaction of the public business, and for the safe-keeping of its valuable records, and a room for the holding of the courts for the time being. There was no suitable building -- in fact, no sufficient building at all -- at the county seat that could be obtained for that purpose. It was the duty of the county court, representing the people of the county, in this emergency, to select a building as near the county seat as practicable, so that the records might not be destroyed and the business of the county might be carried on. A county court is not required to accomplish impossibilities, nor is it to permit the county to become disorganized and a cessation of the public business, and its records be subjected to destruction because of the inability to secure a suitable building at the county seat. Herndon v. Hawkins, 65 Mo. 265; Boldin v. Ewart, 63 Mo. 332; Broom's Legal Maxims, 184; Sevier v. Teel, 16 Tex. 372. (5) Certiorari only brings up for review the record of the lower court or tribunal, and the inquiries raised are jurisdictional in their nature. If, in an emergency, the county court has power to select buildings for temporary use outside of the county seat, then, if it be suggested that the discretion may be abused, the answer is that other remedies than certiorari must be resorted to to prevent such abuse. The record only can be looked to in determining whether the court exceeding its powers. State ex rel. v. St. Louis, 207 Mo. 366.
OPINION
In Banc
Certiorari.
This is an original proceeding in this court by certiorari. The relators are assessed taxpaying citizens of Montgomery county and respondents are the judges of the county court of that county. The object and purpose of the proceeding is to have brought before this court and quashed the record of the county court of Montgomery county, made and entered at a regular term thereof on the 8th day of February, 1911, in the matter of the removal of certain records and offices from the town of Danville, the county seat of said county, to the city of Montgomery in said county. The writ of certiorari was granted as prayed and the respondents in due time made return thereto. The relators filed a motion for judgment on the pleadings and the cause is thus at issue.
It appears from the record, as certified and filed in this court, that the proceedings sought to be quashed contained two separate orders of the county court and deal with two distinct subjects. In the first it is recited that it appeared to the court that the courthouse at Danville, the county seat, was twice burned and that there was then no suitable building at said county seat in which to keep the office of recorder of deeds. The order then refers to section 10,365, Revised Statutes 1909, which is as follows:
The court makes a finding of facts which on its face brings the case within the provisions of said statute authorizing the removal of the recorder's office, and upon such facts orders and directs the recorder of the county to remove his office and the records thereof to the courthouse at Montgomery City. It further appears from the return of the respondents that the office of recorder was removed, in accordance with the order of the county court.
The second order, made on the same day, also recites that the courthouse was twice burned and that there was then no courthouse or other suitable building in which to house and keep the various county offices and the records of the same or in which to hold the courts or to transact the business of the county, at the town of Danville, the county seat of said county; that the frame store building in which the records were then kept was insufficient, unsafe and dangerous to keep the records in, and afforded no room for holding the various courts of the...
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