Twp. Bd. of Educ. of Twp. 36 v. Boyd

• Decision Date: 31 October 1874
• Citation: 58 Mo. 276
• Parties: TOWNSHIP BOARD of EDUCATION of Township 36, Range 2 East, Plaintiff in Error, v. FRANK K. BOYD, et al., Justices of Washington County Court, Defendants in Error.
• Court: Missouri Supreme Court

58 Mo. 276

TOWNSHIP BOARD of EDUCATION of Township 36, Range 2 East, Plaintiff in Error,

v.FRANK K. BOYD, et al., Justices of Washington County Court, Defendants in Error.

Supreme Court of Missouri.

October Term, 1874.

Error to Washington Circuit Court.

Pipkin, for Plaintiff in Error.

I. The duty of the County Court to pay over township school funds into the county treasury is ministerial, devolving upon them by operation of law; and imperative, and no element of discretion can enter into its performance, and mandamus is a proper remedy. (High Mand., § 230, p. 177; Butler vs. Chariton County Court, 13 Mo., 112; Veal vs. Chariton County Court, 15 Mo., 412; Marion Co. vs. Moffet, adm'r, 15 Mo., 604; Ray County vs. Bently, 49 Mo., 236; People vs. Corp. of Brooklyn, 1 Wend., 318.) And this is true, notwithstanding the existence of other remedies. (High Mand., § 17, p. 19; Etheridge vs. Hall, 7 Port., 47; In re Trustees of Williamsburg, 1 Barb., 34; LaGrange vs. State Treasurer, 24 Mich., 468.)

Reynolds & Relfe, for Defendants in Error.

I. Mandamus cannot be used to compel an inferior court to render up a particular judgment. It is not the appropriate remedy. (State, ex rel. Sparks vs. Wilson. 49 Mo., 146; Trainer vs. Porter, 45 Mo., 336, and authorities; High Extra. Leg. Rem., § 149.)

LEWIS, Judge, delivered the opinion of the court.

In 1866, Robert N. and William C. Martin became purchasers, in the usual manner, of the school section in township 36, range 2, east, giving their note with personal security to Washington County, for the use of the inhabitants of the township. In May, 1868, the note remaining unpaid, the County Court required additional security, which was not given. A second order being made, also without effect, the court directed suit upon the note with an application for injunction against the makers to prevent their committing waste upon the land. The injunction bond was executed by F. K. Boyd and J. B. Johnson, two of the justices of the County Court, with other parties. Upon dissolution of the injunction, the Martins obtained a judgment for damages against the obligors, in the sum of $563.08, including costs. This judgment being paid and satisfied by Justice Boyd, the County Court subsequently, by order on the county treasurer, re-imbursed him out of the funds pertaining to the school township. The relators, constituting the board of education, thereupon demanded of the court an order directing the treasurer to re-imburse to their township out of the county treasury, the sum so paid to Boyd. The court refused to make such an order, and this proceeding by mandamus was instituted to compel it. The defendant's return upon the alternative writ set out substantially the above facts, and the relators filed a motion to strike out the return for insufficiency in the facts stated, and for a peremptory mandamus. The court below overruled the motion, and, in the same entry, denied the prayer for mandamus. The relators insist here upon their right to the writ.

The defendants in error call our attention to several imperfections in the bill of exceptions, some of which embody at least a departure from wholesome precedent. But, as our views upon the merits of the relator's application may more effectually prevent further litigation on the subject, it seems best to avoid disposing of the case upon purely technical grounds.

The County Court was a trustee for the “care and management” of the school fund of the township. In this capacity, and in the exercise--for aught that appears to the contrary--of its soundest judgment and discretion, it instituted certain injunction proceedings for the protection of the fund. The law required personal security for the purpose, which was given. A judgment against the surety following, which judgment he was bound to pay, and did pay, it would be strange if the law should refuse to indemnify him from the...