State ex rel. Witmer v. Conrad

ROBINSON, J.

— At the September term of the Bollinger circuit court the appellees, as relators, filed therein a petition against appellants who were the then judges of the county court of Bollinger county, praying that an alternative writ of mandamus issue compelling them to order a special election for the purpose of authorizing the incurring an indebtedness of $5,000, against the county, in excess of the ordinary income and revenues authorized to be levied by law, and to issue bonds for said indebtedness.

An alternative writ was duly issued thereon, to which respondents appeared and filed a demurrer alleging as grounds therefor that the allegations therein contained were insufficient in law to entitle the relators to maintain the proceeding and that the writ did not state facts sufficient to constitute a cause of action against them. This demurrer was overruled by the court and the appellants declining to plead further, the court rendered final judgment ordering its peremptory writ to issue, and respondents appealed.

*658 The petition of relators stated, “that they are now and were on the 12th day of August, 1895, and for many years prior thereto qualified voters of said county of Bollinger and State of Missouri and taxpayers therein; that it became and was on the said 12th day of August, 1895, and has ever since continuously been, and is now necessary for said Bollinger county to incur an indebtedness in the sum of $5,000 for the purpose of building a jail therein, in excess of the total revenue of such county provided for any one year as limited by law; that they with more than 100 others (whose names are set out in the petition), all of whom are now and were on the said 12th day of August, 1895 and for many years prior thereto qualified voters of said county of Bollinger and taxpayers therein, did sign and presented a written application and petition to said county court in the following words and figures:

“ ‘To the Honorable County Court of Bollinger County,Mo., at the August term, 1895, Greeting:

“ ‘We, your honorable petitioners, being qualified voters and taxpayers of said County of Bollinger, do most respectfully petition yo.ur honorable body that, as Bollinger county is without and greatly in need of a county jail, your honorable body do order a special election, as authorized by section 852 of Revised Statutes of Missouri, for the purpose of incurring an indebtedness of five thousand dollars, for. the purpose of building a jail in said county of Bollinger. Said indebtedness to be incurred by the issuance of bonds to the said amount of five thousand dollars, and that said election be called within the year 1895, and as soon from the adjournment of this term of vour honorable court as your honorable body deems most prudent; and to this end we do ever pray.’

“That the county court on the 16th day of August, 1895, made an order that said petition, be filed and that the hearing in the cause be continued until the first Monday in *659 September, 1895; that tbe county court well knowing all tbe facts heretofore set out to be true, actuated by an unlawful intention and determination arbitrarily attempted to prevent said petitioners from holding said election to authorize the incurring of said indebtedness against said county, on said 2nd day of September, 1895, arbitrarily, willfully and illegally made, adopted and caused to be entered in the minutes of said county court and signed same, the following ■order, to wit:

“ ‘In the matter of the petition for a special election for building a jail. Whereas, a petition was filed with this court •on the 16th day of August, at the regular session, containing the names of more than one hundred taxpayers of Bollinger county, Mo., praying the court to order a special election for the purpose of incurring an indebtedness of five thousand dollars for the purpose of building a jail in said county of Bollinger, and whereas, said application was continued to this 2d day of September, 1895. Now therefore the court, after having had due consideration of the matter, refuses to order an election as prayed for in said petition.’ ”

■Which order, so entered on the minutes of said court, it is further alleged in the petition for the alternative writ ■of mandamus, has not yet been spread upon the record of said county court, and which two orders as above set out are all the orders made by said county court in the premises; that said county court on said first Monday in September aforesaid, then made the further order adjourning said court until its regular November term, 1895, “and still unlawfully and arbitrarily fails and refuses to order said election for said purposes aforesaid, and that your petitioners are remediless in the premises by or through the ordinary process or proceedings at law, wherefore this writ is prayed.”

Was the demurrer to the alternative writ predicated upon the facts of relators’ petition as above set out, properly -overruled? Appellants contend, first, that as the alternative *660 writ, set out the petition filed by the relators and others with the county court asking for a special election showed that the petitioners therein asked, not only for the special election to vote on the proposition to incur an indebtedness to build a jail, but in addition thereto, “that said election he called within the year 1895,” the petition did not conform to the statute and the county court was not bound to order the election sought by them for that reason, therefore, was justified in refusing to order said election; that as the time for calling the election is clearly a matter within the discretion of the county court,.in the exercise of that discretion, it could as it did, refuse to order "an election as prayed for in said petition.” And, second, that as the alternative writ further set out the order of the county court on said petition filed with it, and that as said order failed to recite that the one hundred petitioners were qualified voters of said Bollinger county, but only found them to be taxpayers, the presumption to be indulged therefrom, is that the county court found the petitioner's not to be qualified voters, and that the finding of the county court on that jurisdictional fact is final and can not be questioned in this collateral proceeding by mandamus.

Though it is true as asserted in appellants’ first contention, that the time for calling an election as provided for under section 852, supra, is vested in the county court, it by no means follows that because the petitioners designate a time within which they desire an election to be held as prayed for in their petition filed with the county court (for such election), the county court could make that an excuse for failing to order an election that otherwise should hawe been ordered.

That request or suggestion in relators’ petition neither served to divest the county court of its authority to fix the time when the election should be held, nor did it furnish a legal justification for the court’s action in absolutely refusing *661 to call an election, made imperative by said action when tbe requisite number of qualified voters and taxpayers petition for same. It is not tbe suggestion of tbe petition without the range of the státute, but the request and prayer thereof within the compass of the law, upon which the court must make its final order.

The petition could not have been so framed as to have taken from the county court their discretion as to when the election should be held, nor to have relieved the court from the duty of ordering an election, if the petition stated the requisite jurisdictional facts, and was signed by the requisite number of petitioners.

Nor does the right in the judges of the county court to fix and name, the time for the- calling of an election under section 852, supra, imply the right to refuse arbitrarily to fix or name any date whatever, and thus by refusal defeat an election, that should have been called.

That discretion is purely ministerial, and when the jurisdictional facts in the petition have been set out and made to appeal’, and upon which the court has exercised its judicial functions, it can not withhold the exercise of a ministerial discretion to defeat its judicial finding.

High in his work on Extraordinary Legal Eemedies, section 321, thus states the rule and the manner of enforcing obedience thereof: “Whenever the law vests in boards of supervisors, or inferior courts acting under statutory powers, certain prescribed duties which in their character are partly judicial and partly ministerial, if such tribunal have gone forward, in any given case involving the rights of the citizen and fully performed the judicial part, the law imposes upon them an obligation to perform the ministerial part, if they refuse to do so, whether through malice, caprice or an honest mistake of the law, if there is no other mode of relief-for the party injured prescribed by law, mandamus will lie to coerce the performance of the ministerial part.” The *662 rulo, as thus announced, disposes of appellant’s first contention.

Is, then, appellant’s second contention under the pleadings in this case, availing to them ?

They filed no denial to any of the allegations of facts set out in the alternative writ, but instead, a demurrer thereto on the grounds “that the writ and the matters .and things therein contained, state no facts constituting a cause of action against them.” The appellant will not be allowed to admit by demurrer, the facts set out in the alternative writ, “that the petitioners before the county court were qualified voters of Bollinger county and taxpayers therein” and then be permitted to overturn the force of that admission by invoking the presumption that the court did its duty and acted correctly when it made the order, as same is set out and made to appear in the alternative writ, and that from the order as made it must be inferred that the county court did not find the petitioners to-be qualified voters of the county.

If it be conceded that the presumption, in the absence of anything to the contrary, is to be indulged that the county court did its duty in making the order appearing upon its record, and if we take a step further with the appellant and agree that in the absence of anything to the contrary, as the order of the county court set out in the alternative writ fails to find that the one hundred and more petitioners signing the petition presented to the court.were qualified voters of Bollinger county, but only found them to be taxpayers therein, the presumption to be indulged therefrom, is that the court found the petitioners were not qualified voters of said county, still in the face of the admission of the demurrer these presumptions count for naught.

Draw from the order of the county court whatever inference you may, indulge in its favor every presumption. *663 tliat can arise upon its face, none are so conclusive as to shield it from the attack made by this direct proceeding charging that it was unlawfully, willfully, maliciously made without warrant of fact or law. The presumption to be indulged in favor of the validity and correctness of an order of the county court appearing of record and all the legitimate inferences that may be drawn from the recitations therein, are no answer to the allegation of the writ that the petitioners luho' signed and presented this petition to the court were legally qualified voters and taxpayers of said Bollinger county, and that the court well knowing these facts and for the purpose of preventing the holding of the election so sought, willfully, knowingly, arbitrarily, and illegally, made its order of record refusing to call same.

If these allegations are not true (as they are admitted to be for the sake of the determination of the demurrer filed by appellants), if the petitioners were not qualified voters of Bollinger county, or if for any reason the petition was insufficient when presented to the county court appellants should have pleaded such insufficiency, in their return to the alternative writ, but failing so to do> and standing alone upon the demurrer that admits the truthfulness of the averments of the writ, the judgment of the court awarding the peremptory writ must be held proper, and will be affirmed.

All concur.