Wood v. Phelps Cnty. Court

• Decision Date: 31 January 1859
• Citation: 28 Mo. 119
• Parties: WOOD et al., Appellants, v. PHELPS COUNTY COURT, Respondent.
• Court: Missouri Supreme Court

28 Mo. 119

WOOD et al., Appellants,

v.PHELPS COUNTY COURT, Respondent.

Supreme Court of Missouri.

January Term, 1859.

1. Granting that an appeal would lie from the judgment of a county court in a proceeding instituted to obtain a removal of the seat of justice, it would only lie in the case of a final judgment.

2. Neither under the general act regulating the removal of seats of justice (R. C. 1855, p. 513), nor under the act organizing Phelps county (Sess. Acts, 1857, Adj. Sess. p. 397), would an appeal lie to the circuit court from an order of the county court sustaining or overruling a motion to set aside or vacate a former order of the county court approving the location of the seat of justice.

3. Where a public act requiring the exercise of judgment is to be performed by several commissioners appointed in a statute, all of them must meet and confer.

4. Though a majority of the commissioners appointed by the act organizing Phelps county (Sess. Acts, 1857, Adj. Sess. p. 397) may make a location of a seat of justice, yet all the commissioners appointed must meet and confer with respect to such location.

Appeal from Phelps Circuit Court.

Parsons & Pomeroy, for appellants.

I. The county court had no right to reject the petition for the removal of the county seat. The circuit court committed error in dismissing the appeal. The commissioners gave no notice of their intended meeting. The general law requires such notice. The law required all the commissioners to qualify. The circuit court should have heard de novo the petition of the inhabitants for the removal of the supposed county seat, as also their objections to the location. (R. C. 1855, p. 533, § 8.) Three-fifths of the taxable inhabitants of the county are appellants here.

E. B. Ewing, (attorney general), for respondent.

I. The petitioners were not entitled to an appeal. The circuit court did right to dismiss it. (Tetherow v. Grundy County, 9 Mo. 118.) Neither the statute concerning the organization of counties nor that concerning seats of justice authorizes an appeal. (R. C. 1855, p. 504, 513.) See also act to organize Phelps county. There was no final judgment of the county court from which an appeal would lie. But if the proceedings of the commissioners were in any respect irregular, such irregularity could not be remedied by an appeal. The commissioners or a majority of them were required to report their proceedings to the county court, not the circuit court. But if the general law concerning the organization of counties governed the commissioners in the discharge of their duties, there is no such irregularity as invalidates their proceedings. (Act concerning the organization of ounties, R. C. 1855, p. 505-6.) It devolved upon the plaintiffs to aver and prove facts that would invalidate the proceedings of the commissioners. This nowhere appears from the record.

RICHARDSON, Judge, delivered the opinion of the court.

By the second section of the act organizing Phelps county, approved November 13, 1857, George M. Jamison, of Crawford county, Cyrus Colley, of Pulaski county, and Gideon R. West, of Osage county, were constituted a board of commissioners to locate the seat of justice of Phelps county, and were instructed to locate it at the most suitable place in the county on the line of the survey of the south-west branch of the Pacific railroad. The seventh section of the act required the commissioners to meet at the residence of John Webber, in said county, on the 30th of November, 1857; or on any other day thereafter that a majority of them might name, and proceed to locate the county seat and report the same to the county court. The seventh section further provided that a majority of the commissioners should be sufficient to make a location, but should one or more of them fail to act for any reason, it should be lawful for the county court of the county in which such delinquent commissioners resided to supply the place by appointment.

It appears from the record that on the 20th January, 1858, Cyrus Colley and George M. Jamison reported to the county court that they had located the county seat on a tract of land described in a deed, which they presented executed by George W. Bishop, and on the next day the report was approved by the court. It does not appear on what day the commissioners met for the purpose of entering on the performance of their duty, but it was shown that Gideon R. West, of Osage county, failed to qualify or to act; that the other commissioners had no communication with him on the subject of the location, and that only two of them ever qualified or acted in making the location. On the 9th February, 1858, a petition was presented to the court, purporting to be signed by James Woods and 615 other tax payers of the county, complaining of the action of the commissioners in locating the county seat and asking the court to make an order to remove the seat of...