Bakclav, J.
This is an original proceeding for a writ of prohibition.
The petitioners who ask the writ are citizens and taxpayers of Montgomery county.
The defendants are the judges of the county court of that county.
The subject of the controversy is the removal of the county seat.
The application for the writ was first made to this division of the court, February 5, 1895, by certain petitioners, who afterward retired from the case; but, [103]*103before they were well out, the persons now prosecuting the action came in, and were made parties demanding the desired writ.
The defendants have made return, showing their cause why the prohibition should not go.
Upon this return the petitioners have moved for judgment.
This motion for judgment upon the return must be taken to admit all facts well pleaded in the return; and upon that motion the cause has been submitted.
The return of defendants is accompanied with several exhibits of copies of records, bearing on the point on which our judgment is asked.
The principal facts that control the result are not disputed. Their legal effect alone is in controversy.
During last summer, the county court of Montgomery (upon due application, the sufficiency of which is not questioned) ordered that a proposition to remove the seat of justice of that county from Danville to the City of Montgomery be submitted to the qualified voters of the county at the general election, November 6, 1894.
The proposition was accordingly submitted.
When the returns of the election had been received, the county clerk and two justices of the county court, made a canvass of them, November 8, 1894, and the record then made of the result (so far as relates to the removal of the county seat) is given by “Exhibit 5” of the return, as shown in the statement preceding this opinion.
Afterward, December 26, 1894, the county court took action upon the subject, in the manner described by the record which forms “Exhibit C” of the defendants’ return (also given in the statement).
The commissioners to locate the seat of justice in ' Montgomery City under the order of December 26, [104]*1041894, were to meet February 9, 1895; but the rule in prohibition in this action was served upon the defendants, as judges of the county court, February 6, 3895.
The general position of the petitioners is that the ■order for the removal of the county seat was without ■authority and void.
To this contention defendants make several answers, each of which will be considered.
1. It is first insisted that prohibition is not properly allowable to stop action by a county court in regard to the removal of a county seat.
It is very true that the subject-matter of changing the location of a county seat belongs to the administrative department of the county court. That has been often asserted in decisions of the supreme court, the latest of which is St. Louis, etc., Co. v. City (1887), 92 Mo. 165 (4 S. W. Rep. 665).
In one case it was held that prohibition would not lie to prevent action by the county court in ordering the removal of a county seat, where the court was proceeding under the law of 1855, which required only a majority vote for such removal, while the case (as the supreme court held) was really governed by the law of 1865, which required two thirds’ majority to carry the proposition. State ex rel. West v. Clark Co. (1867), 41 Mo. 44. In that judgment, however, the court pointed ■out the distinction between the exercise of judicial, and merely administrative powers, with reference to the use of the writ of prohibition.
Under the existing constitution and laws, there is no question of the size of the majority required to authorize the county court to act. “No county seat shall be removed unless two thirds of the qualified voters of the county, voting on the proposition at a general election, vote therefor,” says the organic law (Art. 9, sec. 2).
[105]*105' The statute law conforms to that command. (R. S. 1889, sec. 3138).
It is the duty of the county court, under section 3145 (R. S. 1889), to perform the final act in the removal, by certifying its belief that the commissioners have selected the most suitable place for the public buildings necessary to the seat of justice. In so doing, the county court, no doubt, acts in its administrative capacity. Indeed, the whole proceedings for the change of a county seat belong to the same general department of governmental activity which that court exercises in the control of the county property and the county finances. But the action of the court, even on ■such subjects, is not beyond the control of law.
The writ of prohibition is applicable whenever judicial functions are assumed which do*, not rightfully belong to the person or court assuming to exercise those functions.
It is the nature of the act which determines the propriety of the writ.
The county court, no less than.other courts, can be prohibited from proceeding to give effect to acts of a judicial character which it has no lawful jurisdiction to perform.
The writ is as available to keep a court within the limits of its power in a particular proceeding as it is to prevent the exercise of jurisdiction over a cause not given by the law to its consideration.
Let us, then, examine the nature of the power exerted by the county court in its action, December 26, 1894.
The county clerk, in conjunction with two judges of the court, November 8, 1894, had made a canvass of the returns on the proposition for the removal of the county seat. They then had ascertained and certified that that proposition received twenty-two hundred and [106]*106twenty-six votes, and that twelve hundred and thirteen votes had been east against the removal.
That certificate also stated that the returns from Wellsville were in an imperfect condition when first, received, but that they were again returned on that day to the county clerk “with the certificate filled out, with the names of the judges and clerks attached thereto.” After that recital the vote of the county was certified, as appears from the figures above quoted.
That canvass of the county returns was spread upon the official records of the county. It showed on its face that the proposition to remove the county seat had fallen short of the required two-thirds majority, and had therefore failed of adoption.
The result of the election having been thus certified, the county court had no power to change that, result. It was bound to give effect to the vote returned by the election officers and duly authenticated.
To use a homely but very significant expression, it could'not “go behind the returns.”
The action which the court recorded, December 26, 1894, undertook to recanvass, or (as the record implies) to complete the canvass of the- result of that election. The court did so “by refusing to count any alleged vote, alleged or supposed to have been cast at Wells-ville precinct,” as its record declares. Having thus thrown out the vote of one precinct, the remaining vote gave the needed majority to the proposition for removal, which the court then pronounced adopted.
Free access — add to your briefcase to read the full text and ask questions with AI
Bakclav, J.
This is an original proceeding for a writ of prohibition.
The petitioners who ask the writ are citizens and taxpayers of Montgomery county.
The defendants are the judges of the county court of that county.
The subject of the controversy is the removal of the county seat.
The application for the writ was first made to this division of the court, February 5, 1895, by certain petitioners, who afterward retired from the case; but, [103]*103before they were well out, the persons now prosecuting the action came in, and were made parties demanding the desired writ.
The defendants have made return, showing their cause why the prohibition should not go.
Upon this return the petitioners have moved for judgment.
This motion for judgment upon the return must be taken to admit all facts well pleaded in the return; and upon that motion the cause has been submitted.
The return of defendants is accompanied with several exhibits of copies of records, bearing on the point on which our judgment is asked.
The principal facts that control the result are not disputed. Their legal effect alone is in controversy.
During last summer, the county court of Montgomery (upon due application, the sufficiency of which is not questioned) ordered that a proposition to remove the seat of justice of that county from Danville to the City of Montgomery be submitted to the qualified voters of the county at the general election, November 6, 1894.
The proposition was accordingly submitted.
When the returns of the election had been received, the county clerk and two justices of the county court, made a canvass of them, November 8, 1894, and the record then made of the result (so far as relates to the removal of the county seat) is given by “Exhibit 5” of the return, as shown in the statement preceding this opinion.
Afterward, December 26, 1894, the county court took action upon the subject, in the manner described by the record which forms “Exhibit C” of the defendants’ return (also given in the statement).
The commissioners to locate the seat of justice in ' Montgomery City under the order of December 26, [104]*1041894, were to meet February 9, 1895; but the rule in prohibition in this action was served upon the defendants, as judges of the county court, February 6, 3895.
The general position of the petitioners is that the ■order for the removal of the county seat was without ■authority and void.
To this contention defendants make several answers, each of which will be considered.
1. It is first insisted that prohibition is not properly allowable to stop action by a county court in regard to the removal of a county seat.
It is very true that the subject-matter of changing the location of a county seat belongs to the administrative department of the county court. That has been often asserted in decisions of the supreme court, the latest of which is St. Louis, etc., Co. v. City (1887), 92 Mo. 165 (4 S. W. Rep. 665).
In one case it was held that prohibition would not lie to prevent action by the county court in ordering the removal of a county seat, where the court was proceeding under the law of 1855, which required only a majority vote for such removal, while the case (as the supreme court held) was really governed by the law of 1865, which required two thirds’ majority to carry the proposition. State ex rel. West v. Clark Co. (1867), 41 Mo. 44. In that judgment, however, the court pointed ■out the distinction between the exercise of judicial, and merely administrative powers, with reference to the use of the writ of prohibition.
Under the existing constitution and laws, there is no question of the size of the majority required to authorize the county court to act. “No county seat shall be removed unless two thirds of the qualified voters of the county, voting on the proposition at a general election, vote therefor,” says the organic law (Art. 9, sec. 2).
[105]*105' The statute law conforms to that command. (R. S. 1889, sec. 3138).
It is the duty of the county court, under section 3145 (R. S. 1889), to perform the final act in the removal, by certifying its belief that the commissioners have selected the most suitable place for the public buildings necessary to the seat of justice. In so doing, the county court, no doubt, acts in its administrative capacity. Indeed, the whole proceedings for the change of a county seat belong to the same general department of governmental activity which that court exercises in the control of the county property and the county finances. But the action of the court, even on ■such subjects, is not beyond the control of law.
The writ of prohibition is applicable whenever judicial functions are assumed which do*, not rightfully belong to the person or court assuming to exercise those functions.
It is the nature of the act which determines the propriety of the writ.
The county court, no less than.other courts, can be prohibited from proceeding to give effect to acts of a judicial character which it has no lawful jurisdiction to perform.
The writ is as available to keep a court within the limits of its power in a particular proceeding as it is to prevent the exercise of jurisdiction over a cause not given by the law to its consideration.
Let us, then, examine the nature of the power exerted by the county court in its action, December 26, 1894.
The county clerk, in conjunction with two judges of the court, November 8, 1894, had made a canvass of the returns on the proposition for the removal of the county seat. They then had ascertained and certified that that proposition received twenty-two hundred and [106]*106twenty-six votes, and that twelve hundred and thirteen votes had been east against the removal.
That certificate also stated that the returns from Wellsville were in an imperfect condition when first, received, but that they were again returned on that day to the county clerk “with the certificate filled out, with the names of the judges and clerks attached thereto.” After that recital the vote of the county was certified, as appears from the figures above quoted.
That canvass of the county returns was spread upon the official records of the county. It showed on its face that the proposition to remove the county seat had fallen short of the required two-thirds majority, and had therefore failed of adoption.
The result of the election having been thus certified, the county court had no power to change that, result. It was bound to give effect to the vote returned by the election officers and duly authenticated.
To use a homely but very significant expression, it could'not “go behind the returns.”
The action which the court recorded, December 26, 1894, undertook to recanvass, or (as the record implies) to complete the canvass of the- result of that election. The court did so “by refusing to count any alleged vote, alleged or supposed to have been cast at Wells-ville precinct,” as its record declares. Having thus thrown out the vote of one precinct, the remaining vote gave the needed majority to the proposition for removal, which the court then pronounced adopted.
Even if the proceedings of December 26, 1894, be regarded as the first canvass of the county vote, it appears that at that time the Wellsville vote had been duly certified. That vote could then no more be discarded by the county court, if acting as a canvassing board, than by any other mere canvassing authority, under the settled law of this state. Mayo v. Freeland [107]*107(1847), 10 Mo. 630; State ex rel. v. Steers (1869), 44 Mo. 223; Bowen v. Hixon (1870), 45 Mo. 340; State ex rel. v. Trigg (1880), 72 Mo. 365.
At this point we touch the very gist of the case.
To change the result announced and certified by election officers requires the exercise of judicial power. To get rid of the vote of Wellsville precinct in the matter in hand, it was necessary for the county court to use a power such as is ordinarily exerted in the contest of an election.
The act of the court was not a mere announcement of the result, as certified by the officers to whom the law confided the duty to certify. It was judicial action upon the result so certified. It was judicial action which substituted a different result from that exhibited by the certified returns.
Ye regret the occasion that requires us to say that the use of such power by the county court, in the circumstances, was not authorized by law. The attempted action was judicial in its nature, and, as such, beyond the jurisdiction of the court in the matter it then had in hand.
It is precisely such a case as the writ of prohibition is designed to reach — a case of assumption of authority to pass judgment upon a subject not committed by law to the decision of the tribunal so assuming to act.
Although the court had jurisdiction of the subject-matter, namely, the power to hear and determine the general class of proceedings to which that in question belonged, it did not have jurisdiction to use, in such a proceeding, a judicial power not applicable therein under the existing law-.
The county court is a constitutional court of record, but its jurisdiction is defined to be, “to transact all county and such other'business as may be prescribed bylaw.” Const. 1875, art. 6, sec. 36.
[108]*108The law governing its action in regard to the removal of county seats (R. S. 1889, secs. 3136 and following) neither expressly, nor by implication, confers any authority to act judicially upon the. returns of the election, as was done in this instance.
The county court did not have the power to set aside the returns from any precinct; and, in assuming that power, it passed beyond the limits of the authority confided to it.
In many states of the union provision is made for contests of elections for the removal of county seats. But in Missouri there are no express provisions of law for such contests. That fact, however, can not justly be held to enlarge the jurisdiction of the county court in reference to that subject. That court, we repeat, can not act judicially upon the returns, for the purpose of revising the result they exhibit.
. We conclude that the writ of prohibition will lie to stop further action by the court under the judgment of December 26, 1894.
We consider that this conclusion does not conflict with the rulings which declare that the removal of a county seat belongs to the administrative or business department of county affairs. We regard the question here raised as involving principles not discussed in those cases, but which are of vital importance in dealing with the subject of elections. The case is not one of mere error of judgment in a matter which the court was authorized to act upon. Here is a plain assumption of power not appertaining to the court in the proceeding in which the power is sought to be applied.
In the exercise of the superintending control given to the supreme court by the constitution (Const. 1875, art. 6, sec. 3), it is the plain duty of this court, when properly invoked, to grant'a'writ of prohibition if necessary to keep a county court from passing beyond [109]*109the bounds of its proper authority into a field of judicial action not assigned to it, but plainly forbidden to it by the law.
2. But it is claimed that other remedies are available to check the defendants from proceeding in the matter of removing the county seat. That may be.
The court will decline to award a prohibition where a party can readily obtain a desired result by other methods of procedure, as was held in Mastin v. Sloan (1889), 98 Mo. 252 (11 S. W. Rep. 558).
But those methods must be reasonably adequate, prompt and efficient.
The granting of a prohibitory writ is discretionary in the sense that the court will not issue it, unless the facts exhibited appear to justify a resort to such a remedy. Where other convenient and effective modes of reaching the same result are open to the complain-, ing party, the court may decline to award the extraordinary remedy. But it is not bound to decline because there may be some concurrent remedy. Whether other modes of relief are equally 'effective is a question to be determined in each particular exigency.
And where a state of facts is presented, calling for the use of the writ according to the principles and usages of law, and where no other remedy is available, its allowance is not discretionary, but a¡ matter of right under our constitution. (Art. 2, sec. 10.) ■
In the present instance we have no hesitation in ruling that the resort to this writ is appropriate and lawful.
3. But it is then said that the matter has gone too far to be reached by a writ of prohibition'.
The action of the county court in December was, in effect, a judgment upon the election; a judgment beyond the jurisdiction of the court that entered it of record.
[110]*110So long, at least, as any part of it remains unexecuted, ' further proceedings upon it can properly be prohibited.
This point has been recently so fully discussed that a repetition of the argument upon it is deemed unnecessary. State ex rel. v. Rombauer (1891), 105 Mo. 103 (16 S. W. Rep. 695).
A judgment rendered without jurisdiction certainly can not be infused with life by a mere attempt to promptly execute it.
The defendants were invoked to vacate the judgment, as being unauthorized, some time before the date set for the commissioners to act in the matter of the removal. The prohibitory rule in this case was served before that date; and final action by the county court would still be needed (under section 3145).to complete the removal, even had the requisite vote been given.
As the case stands, the judgment of removal can not lawfully be carried out.
4. A suggestion has been -made, looking toward action by this court in reference to steps taken by defendants since the preliminary rule in this case. We do not deem it needful at this time to go into that question.
We are dealing with sworn county officers, whom we have no ground to suppose have the slightest intention to disregard the law. The proceedings, which we have found it our duty to disapprove, were, no doubt, taken by the county court under a mistaken apprehension of the extent of its authority in the premises. We have no reason to believe that defendants will not promptly conform their official action to the ruling we have made. So we reserve any action on the suggestion referred to.
It follows from what has been said that the motion for judgment is sustained, and the rule in prohibition [111]*111is made absolute.
Bbace, C. J., and Maceablane and Robinson, JJ., concur.
OPINION ON MOTIONS AETEB JUDGMENT.
PebCubiam (Bbace, C. J., and Babclay, Maceablane and Robinson, JJ.)
Two points are presented by motions following the peremptory writ. In order that there may be no possibility of any misunderstanding of .the effect of our rulings thereon, we file this memorandum.
1. The motion to quash the return to the peremptory writ is sustained for these reasons.
The only return that can properly be made to a peremptory writ of prohibition is a return of compliance with it. Here, the writ commanded defendants to conform their official action, as judges of the county court, to the judgment rendered. That judgment declared that the county seat of Montgomery county had not lawfully been removed from Danville, and that it could not so be removed under the official returns of the last election on that subject.
It now appears that the defendants, having meanwhile removed the county records from Danville to Montgomery City (as though the county seat had been lawfully transferred to the latter city), have held a session of the county court at Montgomery City, since the final judgment of this court and since the service of the peremptory writ upon them. In their return to that writ defendants significantly omit to state that they have conformed their official action to the judgment of this court, as the writ commands them to do.
Hence their return to the peremptory writ is insufficient. It is accordingly quashed. Defendants are required to make a further return to said writ within-ten days from this date.
[112]*1122. On the motion for an attachment for contempt it is ordered that such attachment issue, returnable to the first day of the next term of this court; but if in the meantime the defendants shall obey in all respects, in its letter and obvious intent, the peremptory writ, and make full return thereof (as required by the order for a further return above made), the court will duly consider that fact at the opening of the next term, in determining what further orders be made in the matter of said contempt.
' We trust it may not be necessary to proceed to apply any drastic measures in this case to secure obedience to the orders and judgment of this court, and that defendants will render a prompt deference to the law which is binding and obligatory as well upon judges as upon all other citizens of the state.
The county judges afterward made return of full compliance with the supreme court’s orders touching the county seat and were thereupon discharged from attachment on payment of costs.