Opinion
March 4, 1930.
1. PROHIBITION: County Court: Roads and Bridges. County courts have general jurisdiction of the subject-matter of county roads and bridges and of county bond issues, and cannot by prohibition be prevented from exercising that jurisdiction.
2. ____: ____: Refusal to Appoint County Highway Commission: Mistaken Remedy. Prohibition to restrain and prohibit the county court from locating, laying out, designating, constructing and maintaining a system of farm-to-market county highways and from expending the proceeds of a bond issue voted by the taxpayers for those purposes, is not the proper remedy to compel the county court to appoint the county highway commission provided for by the Act of 1927. Until such commission is appointed and the county highway system contemplated by said act is designated, it cannot be ruled that the county court is exceeding its jurisdiction in performing the duties prescribed for it by other statutes. If any remedy exists to compel the county court to appoint a county highway commission under said act it is by mandamus.
PRELIMINARY RULE DISCHARGED.
Taylor R. Young, John C. Vogel and Abbott, Fauntleroy, Cullen Edwards for relators.
(1) Respondents are acting in a judicial capacity, and their action is subject to control by this court by writ of prohibition. State ex rel. Ellis v. Elkins, 130 Mo. 90; State ex rel. Browning v. Juden, 264 S.W. 103. (2) Respondents have no authority or jurisdiction to locate, lay out, designate, construct or maintain a system of county highways without appointing a county highway commission and without securing the approval of the State Highway Commission. Laws 1927, p. 422. (3) The act approved April 6, 1927, entitled, "An act creating a county highway commission in each county in this State, and providing for the laying out, designation, location, construction and maintenance of a system of county highways," is constitutional. (a) It does not violate Article VI, sec. 36. Harris v. Bond Co., 244 Mo. 664; State ex rel. v. Morehead, 256 Mo. 683; State ex rel. v. Burton, 266 Mo. 711. (b) It does not violate Article X, sec. 22. State ex rel. v. Burton, 266 Mo. 711; State ex rel. Special Road District v. Barry, 302 Mo. 288; State ex rel. v. Land Co., 317 Mo. 41; State ex rel. v. Railway Co., 3 S.W.2d 378.
Walter Wehrle, Virginia J. Booth and James Booth for respondents.
(1) The expenditure of the proceeds of the bond sale and the laying out, construction and maintenance of the roads with such proceeds, constitutes county business within the meaning of Sec. 36, Art. VI, Constitution of Missouri. The Act of 1927, Laws 1927, p. 422, conflicts with said constitutional provision and for that reason is void. State ex rel. v. McElroy, 274 S.W. 749. (2) By express statute the county is given the control and management of all county property. Sec. 2574, R.S. 1919. (3) The county court is expressly vested by statute with the sole and exclusive jurisdiction of designating, laying out, locating, constructing and maintaining the county roads of St. Louis County. Articles I, III, IV and V, Chapter 98, R.S. 1919. (4) Relators are clearly mistaken in their remedy. They improperly seek by prohibition to compel respondents to perform a statutory ministerial duty by appointing a county commission as required by said Act of 1927. State ex rel. v. Bollinger, 219 Mo. 204. (5) Prohibition is the remedy where the act is beyond jurisdiction or without jurisdiction, is threatened but not done, and, if the court has jurisdiction to proceed but refuses to do so, the correlative remedy by mandamus is properly invoked to compel the court to act. State ex rel. Smith v. Williams, 275 S.W. 534. (6) The purpose of the prohibition is not to correct errors, but to prevent usurpation of jurisdiction. State ex rel. Buckner v. Ellison, 277 Mo. 301; State ex rel. Graham v. Seehorn, 246 Mo. 541; State ex rel. v. Stobie, 194 Mo. 14. (7) The writ is a discretional remedy and will not be used to take the place of appeal, writ of error, certiorari, injunction or mandamus. 22 R.C.L. 9, sec. 8; State ex rel. McNamee v. Stobie, supra; State ex rel. Larew v. Sale, 188 Mo. 493. (8) If the county court has jurisdiction, its proceedings will not be prohibited, nor will the performance of its ministerial or administrative duty be controlled by prohibition. State ex rel. v. Bollinger, 219 Mo., supra; State ex rel. McAnnally v. Goodyear, 195 Mo. 551; Hockaday v. Newson, 48 Mo. 196; Harrison v. Burris, 84 Mo. App. 654; Vitt v. Owen, 42 Mo. 512; Howard v. Price, 38 Mo. 296; State ex rel. McEntee v. Bright, 224 Mo. 514; State v. Hatchaway, 115 Mo. 36. (9) In refusing to appoint a county highway commission and to comply with the provisions and requirements of the Act of 1927, respondents were not acting judicially, but if the act were legal respondents were subject to mandamus. State ex rel. Pollock v. Becker, 289 Mo. 660. (10) By holding the election and issuing bonds under said Article V, and by their intended expenditures of the proceeds arising from the sale of bonds, respondents were not acting judicially in determining that said Article V was not repealed in whole or in part by the Act of 1927. State ex rel. v. Johnson, 234 Mo. 350. (11) The Act of 1927 expressly repealed Sections 10651 to 10660, R.S. 1919. The act repealed in toto Art. II, Chap. 98, R.S. 1919, providing for a system of dragged roads to connect county seats. It did not mention Article V of Chapter 98, or repeal or purport to repeal any of the sections thereof. (12) The Act of 1927 contains no repealing clause save as to said Article II. The very language of the act precludes any intention to repeal said Article V, under which the bond issue was voted and under which the proceeds will be expended. State ex rel. Hyde v. Buder, 287 S.W. 309.
This is an original proceeding in prohibition filed by relators, who are taxpayers of St. Louis County, against respondents, the County Court of St. Louis County, to restrain and prohibit respondents from proceeding with the locating, laying out, designating, constructing and maintaining of a system of county highways in St. Louis County and from expending the proceeds of a bond issue voted by the taxpaying citizens of St. Louis County without appointing a County Highway Commission and without securing the approval of the State Highway Commission. The case is submitted on relators' amended petition, respondents' return, and relators' demurrer to the return.
Among other things the petition sets out the provisions of an act of the Legislature of the State of Missouri, approved on April 6, 1927, and entitled, "An Act Creating a County Highway Commission in Each County of this State and Providing for the Laying Out, Designation, Location, Construction and Maintenance of a System of County Highways." Said act provides in substance that it shall be the duty of the county court of each county, within sixty days after the taking effect of said act, to appoint a County Highway Commission composed of four members, who shall be known supporters and advocates of the system of county highways constructed and maintained, with a view of affording the greatest convenience to the inhabitants in the nature of farm-to-market roads, which commission should have absolute jurisdiction and control of all highways constituting a part of the county highways system, and which commission is given power to locate, lay out, designate, construct and maintain, subject to the approval of the State Highway Commission, a system of county highways to be known as farm-to-market roads. Said act further provides that, before any such county highways shall be constructed, it shall be the duty of said highway commission to submit said location to the State Highway Commission for its approval.
Looking to the allegations of fact in the petition which are admitted by respondents' return and to the allegations of the return for the facts in the case, we find that ten million dollars of the bonds of St. Louis County were voted and authorized under the provisions of Article V of Chapter 98, Revised Statutes 1919, for road and bridge purposes; that respondents will use and expend the proceeds from the sale thereof under said article; that bonds to the extent of six hundred thousand dollars were issued and are now outstanding, and the proceeds from the sale thereof have been received by said county and are now in the hands of its treasurer; that respondents have failed and refused to appoint four members of the County Highway Commission of said county; that respondents have retained jurisdiction of the highways constituting the county highway system of said county, and have retained the fee simple title to said roads, and have retained control over the expenditure of said fund representing the proceeds of the sale of said county road bonds, and will continue to locate, lay out, designate, construct and maintain a system of county highways without appointing any county highway commission and without securing the approval of the State Highway Commission.
In their petition relators first ask for our writ prohibiting respondents "from proceeding further in and from exercising further jurisdiction over or in respect to a certain fund of the County of St. Louis representing the proceeds of the sale of certain county road bonds of the County of St. Louis and State of Missouri, and from controlling the expenditure of said funds." Relators then allege that "respondents are without jurisdiction or authority to retain control of said fund, consisting of the proceeds of the sale of said county road bonds of St. Louis County, and are without jurisdiction to locate, lay out, designate, construct and maintain a system of county highways in St. Louis County without appointing a county highway commission and without securing the approval of the State Highway Commission," and that respondents in so doing are acting in excess of their jurisdiction and authority. Their final prayer is that respondents be prohibited "from proceeding or continuing to exercise jurisdiction over said fund arising from the sale of said county road bonds and prohibiting them and each of them from locating, laying out, designating, constructing or maintaining a system of county highways and from expending said funds therefor, or from attempting to locate, lay out, designate, construct or maintain or attempting to expend said fund therefor without appointing a county highway commission as required by said act approved on April 6, 1927, and without securing the approval of the State Highway Commission."
From the foregoing it is obvious that the sole purpose of this proceeding is to compel respondents to appoint a county highway commission for St. Louis County pursuant to the above mentioned act of the General Assembly approved April 6, 1927. The burden of relators' complaint is that respondents have failed and refused and still fail and refuse to perform a duty which relators say they have jurisdiction to perform, and should perform, to-wit, that of appointing a county highway commission. County courts have general jurisdiction of the subject-matter of county roads and bridges and of county bond issues for such purposes. Whatever the jurisdiction of the county highway commission may be under the Act of April 6, 1927, until such commission is appointed and the county highway system contemplated by the act is designated it cannot be said that the county court in pursuing the activities above mentioned has exceeded its jurisdiction. Even if respondents should, either voluntarily or in obedience to a rule of this court, desist from the activities above mentioned, but should still fail and refuse, as in their return they say they will, to appoint such a county highway commission, the alleged rights of relators would not be promoted or conserved by this proceeding. Relators have evidently mistaken their remedy. If any exists it is by mandamus and not by prohibition, according to the record here presented. [State ex rel. v. Bollinger, 219 Mo. 204, 223, 117 S.W. 1132; State ex rel. v. Williams, 275 S.W. 534, 535; State ex rel. v. McQuillin, 262 Mo. 256, 266, 171 S.W. 72; 22 R.C.L. p. 9.]
Our preliminary rule heretofore issued is, therefore, discharged. All concur, except Walker, J., who is absent.