Shine v. Kentucky Central Railroad

JUDGE HOLT

delivered the opinion oe the court.

The appellee, the Kentucky Central Bailroad Company, filed its petition in the Kenton county court against one Alonzo Graves, under the law providing for the condemnation of land for railway purposes. (Acts of 1881, vol. 1, p. 83.) It provides that this may be done when the property is necessary for such use, and can not be obtained by contract with the owner; also that commissioners shall be appointed to award to the owner the value of the land and damages, if any; and upon the filing of the report he is to be summoned to show cause, if he have any, against its confirmation; and if exceptions to it are filed, “the court shall forthwith cause a jury to be impaneled to try the issues of fact” made thereby.

In this instancethe petition avers that the condemnation of the property is necessary for the extension of the railroad from- its then terminus in the city of Covington to the Ohio river; and that it had endeavored to contract with Graves for it, but had been unable to do so. The answer puts all this in issue, save that no agreement of purchase had been made, and states affirmatively that the land could be obtained by contract at a fair price; also that the appellee had no right to maintain the *180 proceeding, as its road had, by a decree of the Federal Court, been placed in the hands of a receiver.

The necessary commissioner’s report was filed, fixing the value of the property and the resulting damages; and exceptions having been filed to it, the appellee moved the court to impanel a jury to try the issues thus formed, while Graves, who had filed an exhibit showing the appointment of the receiver, moved the court to dismiss the proceeding, upon the ground that the appellee had no right to sue. •The first motion was overruled, and the last one sustained, the judgment allowing Graves his costs.

This proceeding was then filed in the Kenton circuit court by the appellee against the appellant, the judge of the Kenton county court, to compel Mm, by mandamus, to impanel a jury and try the case which he had dismissed.

It is urged upon behalf of the appellee, that the dismissal was, in effect, a refusal to proceed further with the case ; and that, as is true, there need not be a direct refusal to do so, to authorize the writ; but that it is sufficient if such circumstances appear as satisfy the court that such was the intention. Various reasons were presented by the answer why the mandamus should not issue. We shall no' tice but two of them.'

Section 477 of the Civil Code provides: “The writ of mandamus, as treated of in this chapter, is an order of a court of competent and original jurisdiction, commanding an executive or ministerial officer to perform an. act or omit to do an act, the performance .or omission of which is enjoined by law.”

*181 This provision relates only to the acts or omissions of ministerial officers, vested with no discretion, and does not restrict the issual of the writ to them. True, courts will not interfere with the exercise of discretionary power; but where an officer or inferior judicial tribunal, vested with it, refuses to exercise it at all, or act in any manner, they will, by mandamus, set him or it in motion, without, however, controlling the direction. The judgment in such a case must be left free to act, and reach such a result as it deems proper.

Thus mandamus will lie to compel a judge to act upon a bill of exceptions ; or to receive a verdict; or to try a cause, or to hold a court. If this were not so, a denial of justice would result. (Clark v. McKenzie, &c., 7 Bush, 523 ; Commonwealth, etc., v. Boone County Court, 82 Ky., 632 .) In this instance however, the writ should have been refused for two reasons at least.

Unquestionably the action of the county court was judicial. It did not refuse to act. It did act, as, shown by the copy of its orders filed with the petition, and dismissed the proceeding upon the ground that the appellee could not maintain it, owing to the appointment of the receiver.

It is unnecessary to decide whether this ruling was' or was not correct. The right of the appellee to maintain the proceeding, was a question presented to the county court by the record for its decision. It exercised its judgment, and dismissed it because it was of the opinion that the appellee had no such power. It reached this conclusion in the exercise of *182 its discretion; and while mandamus will lie to set a court in motion, it can not be used to control the result. It may compel the trial of an issue, but not how it shall be tried. (High on Extraordinary Remedies, section 24.)

If so, new trials could, in effect, be thus obtained ; and this writ . can not be used for such a purpose. The inferior court must be left free to exercise its own judgment; and the opinion of another tribunal can not be substituted for it. (Goheen v. Myers, 18 B. M., 426; ClarK v. McKenzie, &c., 7 Bush, 528 .)

The county court was not required to defer the exercise of its judgment as to the right of the appellee to maintain the proceeding until a jury had passed upon the issues raised by the. exceptions. Indeed, it was proper that it should not do so. If this were required, it would often result in useless trouble and expense to the parties. Take the ca,se of the condemnation of land for a road. The viewers file their report, and we will suppose that it is excepted to because they were not sworn, or were not qualified, or because the report does not describe the route; certainly a writ of ad quod damnum should not issue until all such preliminary questions are settled.

Again, a party has a right to demand a jury in certain cases; and as well might it be held that they must pass upon the issues of fact presented, although there may be many reasons, such as incapacity to sue, etc., why the court must dismiss the action.

*183 It results that the demurrer to the petition should have been sustained, for the reason above indicated.

There is another one, however, why mandamus will not lie in this • instance. The appellee had a right to appeal.

The sixth section of the act of April 11, 1882 {cited supra), provides: “Either party may appeal to the circuit court, or other court of similar jurisdiction of the county, within thirty days, and the appeal shall be tried de novo.”

This right existed whether a jury determined the issues of fact, or whether the court dismissed the proceeding upon a legal issue. An appeal is from the judgment of the court, and not a verdict of a jury. If an inferior court dismisses a warrant or an action without a trial upon the merits, or the intervention of a jury in a case where one is allowable, yet the party may appeal and have the action tried de novo. Here the commissioners had filed their report as to the value of the land and the •damages, and the record was complete for such a purpose. Mr. High, in his work above cited, section 177, says : “In all cases where full and ample relief may be had, either by appeal, writ of error, or •otherwise, from the judgment, decree or order of the subordinate court, mandamus will not lie, since the courts will not permit the functions of an appeal or writ of error to be usurped by the writ of mandamus. Indeed, the interference in such cases would, if tolerated, speedily absorb the entire time of appellate tribunals, in revising and superintending the proceedings of inferior courts, and the embarrassment *184 and delay of litigation would soon become insupportable, were the jurisdiction by mandamus sustained in cases properly falling within the 'appellate* powers of the higher courts. It may, therefore, be-laid down as the universal rule prevailing in both England and America, that the existence of another-remedy adequate to correct the action of the inferior court will prevent relief by mandamus.” See-also the case of Coheen v. Meyers, supra.

It is too well settled to need the citation of further authority, that mandamus will not lie where the party has any other adequate remedy, such as-the right of appeal, to correct the supposed grievance.

The judgment is reversed, with directions to sustain the demurrer to the petition and dismiss the action, with a judgment for the appellant’s cost.