Wilson v. Berkstresser

• Decision Date: 31 January 1870
• Citation: 45 Mo. 283
• Parties: SAMUEL M. WILSON, Petitioner, v. WILLIAM BERKSTRESSER and THERON M. RICE, Judge First Judicial Circuit
• Court: Missouri Supreme Court

45 Mo. 283

SAMUEL M. WILSON, Petitioner,

v.WILLIAM BERKSTRESSER and THERON M. RICE, Judge First Judicial Circuit

Supreme Court of Missouri.

January Term, 1870.

Petition for writ of prohibition.

Johnson & Budd, for petitioner.

I. The office of prohibition is to prevent courts from going beyond their jurisdiction in the exercise of judicial power. (3 Blackst. Com. 112, 113; Thomas v. Mead, 36 Mo. 232; State ex rel. West et al. v. Clerk County Court et al., 41 Mo. 44; Vitt v. Owens et al., 42 Mo. 512.)

II. The whole subject of establishing, changing, and vacating public roads is placed under the exclusive jurisdiction of the County Court, and a mandamus will not lie from the Circuit Court. (County Court v. Round Prairie Township, 10 Mo. 679; Vitt v. Owens et al., 42 Mo. 514.)

BLISS, Judge, delivered the opinion of the court.

The plaintiff, as president judge of the County Court of Morgan county, sued out an alternative writ of prohibition, returnable at this term, and, in his petition, charges that the said Rice, as circuit judge of said county, at the suit of said Berkstresser, had issued his writ of mandamus against the justices of the said County Court, commanding them to allow the said Berkstresser the sum of eighty-five dollars, and to draw a warrant for the amount upon the county treasurer. It appears that certain parties had presented to the County Court a road petition, of which the following is a copy: “The undersigned householders of Moreau and Haw Creek townships, Morgan county, Missouri, respectfully petition your honorable court to change the State road leading from Versailles to Georgetown, as follows: commencing at or near where said road crosses the first branch of Moreau creek, thence to Marple's dam.” No papers were filed with the petition, but the County Court made an order upon the road commissioners to view and locate the road, take the right of way, ascertain the cost, and report at the next term of the court. The commissioners accordingly recommended the change, reported the survey of the new road, and that all the persons whose land it crossed had released the right of way, except Wm. Berkstresser, to whom they assessed five dollars as his damage. The court accepted the report, ordered the petitioners to pay the damages, and, upon proof that the five dollars had been tendered, ordered the road to be opened and the overseer to take immediate possession. The record shows that at the next term a jury trial was had in the County Court, by consent, and that said Berkstresser obtained a verdict of eighty-five dollars for the right of way over his land, and it does not appear that any further proceedings were had in the County Court.

In February, 1869, defendant Berkstresser sued out of the Circuit Court the alternative writ of mandamus, above spoken of, which was made peremptory at the May term. The plaintiff asks for the writ of prohibition upon the ground that the Circuit Court exceeded its jurisdiction in its mandamus proceedings and in their manifest error. It is very clear that the proceedings in the County Court to change the road, or for a new road, did not comply with the law. It is difficult to tell under which provisions of the statute the petitioners acted. They say that they wish a change in the road, and if that is their object, they could only apply for the change under the provisions of sections 56, 57, and 58, p. 1229, Wagn. Stat. But they have not complied with these sections; for it is not the petition of a person wishing to cultivate his land--no notice appears, and there is no written consent from the persons upon whom he would turn the road. They are equally unfortunate if their object be a new...