State ex rel. Howell County v. Justices of Howell County Court

Wagner, Judge,

delivered the opinion of the court.

This was an application for a writ of mandamus against the defendants, who are justices of the Howell County Court, for the purpose ot'compelling them to build a court house. It was averred, that the court house in the county was a poor and insufficient building, and it would be greatly advantageous to have a better one; and that a petition had been .presented to the County Court, requesting them to authorize and take steps to construct a better and more suitable court house, but that the defendants caused an order to be entered of record,- refusing to grant the request. A peremptory writ was therefore asked, to compel the defendants to proceed with the erection of the building. At the return term of the alternative writ, the defendants filed a demurrer, which was sustained by the court, and the relator excepted and appealed. The only judgment in the ease, is the one sustaining the demurrer, and that is not such a final judgment as will support an appeal. But aside from this point the judgment should be affirmed. It is manifest that mandamus will not lie in a case of this character. T|he statute, in reference to county buildings, provides, that whenever the County Court of any bounty shall think it expedient to erect any county building, and there shall be sufficient funds in the county treasury for that purpose, not otherwise appropriated, or the circumstances of *585 "the county will otherwise permit, they shall make an order for the building thereof, etc. (1 Wagn. Stat., 403, § 4.) This law leaves the erection of the buildings entirely to the sound discretion and judgment of the County Court, and that discretion cannot be controlled by mandamus.

Judgment affirmed;

the other judges concurring except Judge Tories, who is absent.