delivered the opinion of the court.

At the August term, 1847, of the St. Francois county court, commissioners were appointed in conformity with a pending petition, to locate a county road, at the succeeding February term they made their report, showing that the road they had located passed over lands belonging to the heirs of Davis S. Marks, deceased, and that George Marks, as their agent, made objection. A summons was accordingly issued and served upon him, to shew cause, at the ensuing May term, why the road should not be opened at that term, however, the commissioners were permitted to amend their report by adding the name of another person over whose land the road passed, and who also made objection.

Things appear to have remained in this condition until the third day of the August term ensuing, when an order was made by the court that the road be opened. On the day afterwards, Polly Marks, who it is admitted was the partitionee and owner of the land over which the road passes, presented her remonstrance against it, and the court appointed commissioners to ascertain and assess her damages. Two of the commissioners thus appointed having concurred in a report which they made at the November term, following, awarding to the remonstrant seventy dollars as compensation for the injury the road would occasion her, and the court refusing to receive or act upon the report, the remonstrant made herself plaintiff in a petition to the circuit court for a conditional mandamus, which was awarded.

The answer of the county court is to the effect, that at the time in question there was no law authorising the assessment of damages for lands taken for a county road, or that if there was, the objector did not present her remonstrance in time; that the report of the commissioners was insufficient, because but two of them examined the lands and because it does not show what grievance was sustained, what particular land (or how much) was taken ; and because the commissioners misconceived their duties, and rendered excessive damages, &c.

The petitioner having demurred to this answer it was sustained, a peremptory mandamus awarded, and the cause is brought here at the instance of the county court.

The sections of the road law of 1845, under which the damages in this case were assessed were doubtless the following:

“ Sec. 16. If any person through whose land such road may run, shall, on the day of the return of the summons or summonses executed, which are authorised to be issued by the 13th section of this act, pre*542sent a remonstrance to the court, setting forth his grievances, the court shall appoint three disinterested house holders, and a day and place for them to meet.

“ Sec. 17. Such house holders having had five days notice from any person interested, shall meet and take an oath or affirmation faithfully and impartially to discharge the duties assigned them.

“ Sec. 18. They shall then, or on any other day, prior to the next session of the county court, to which the majority may adjourn, proceed to review the proposed road and assess the damages, if any, which such objector will sustain by reason of such road being opened and continued through his land; and shall report their proceedings to the next county court.

“Sec. 19. If a majority of such reviewers shall assess damages in favor of the objector, such damages and costs shall be paid out of the county treasury; but if the majority report that the objector will sustain no damages, such objector shall pay the costs.” '

Although the 13th section herein alluded to was repealed by the subsequent assembly of 1847, it is not deemed to follow, by implication or otherwise, that the sections we have quoted, however seemingly de-pendant upon it, were thereby also repealed. Indeed, the only effect which the repeal of the 13th section is perceived to have upon the 16th, is to leave to the discretion, and consequently the practice of the court, the time when it will receive and act upon the remonstrance of an objecting citizen. Were the county court under such circumstances to exercise such a discretion inequitably, captiously or oppressively in reference to a remonstrant, this court would of course feel called upon to review and correct the procedure, In the ease before us, however, the county court seems to have acted fairly, and within the spirit and intention of the law, in the appointment of commissioners, and at all events cannot be heard to complain of its own act. It was therefore {he duty of that tribunal to receive the report of the commissioners, and either comply with their award or send the case to a jury as provided for in the first section of the amendatory act of January 25th, 1847. The provisions of that section having evident relation to the provisions of the 19th instead of the 20th section of the first article of the general law of 1845.

Having neglected to do this, and the language of the last section which-we have above quoted being as imperative as the high constitutional guaranty it was intended to enforce, the circuit court did right in sustaining the demurrer to the repliants answer, and awarding a peremptory mandamus. Its judgment is therefore affirmed.