Alderson v. St. Charles Cnty.

• Decision Date: 14 January 1879
• Citation: 6 Mo.App. 420
• Parties: BENJAMIN A. ALDERSON, Plaintiff in Error, v. ST. CHARLES COUNTY, Defendant in Error.
• Court: Missouri Court of Appeals

6 Mo.App. 420

BENJAMIN A. ALDERSON, Plaintiff in Error,

v.ST. CHARLES COUNTY, Defendant in Error.

St. Louis Court of Appeals, Missouri.

Jan. 14, 1879.

1. A County Court has no power to bind the county to all contracts which the former may choose to make.

2. The Swamp-Land Act provides that after the practicability of the work shall have been judicially determined by the County Court, commissioners shall be appointed; and where the County Court appoints commissioners, upon whose report the work is declared to be impracticable, such commissioners have no recourse against the county for pay or expenses.

ERROR to St. Charles Circuit Court.

Affirmed.

H. C. LACKLAND, for plaintiff in error, cited: Hase v. Warren County, 3 Mo. App. 567; Smith v. Clark, 54 Mo. 58; Marcy v. Oswego, 2 Otto, 637; Kiley v. Forsee, 57 Mo. 390; Young v. St. Louis, 47 Mo. 492.

WM. A. ALEXANDER, for defendant in error, cited: Miller v. Iron County, 29 Mo. 192; The State v. St. Louis, 34 Mo. 546; Reardon v. St. Louis, 36 Mo. 555; The State v. Shortridge, 56 Mo. 126; Campbell v. Polk, 49 Mo. 214; Kingsbury v. Pettis, 48 Mo. 208.

BAKEWELL, J., delivered the opinion of the court.

This was an action for services rendered by plaintiff to defendant, and for expenses incurred by plaintiff as commissioner under the Swamp-Land Act. The petition alleges that on August 12, 1874, the County Court of St. Charles County made an order appointing the plaintiff and two others commissioners in the matter of draining and letting out contracts for draining a contiguous body of swamp land in St. Charles County, called the Ford Swamp, which appointment was reaffirmed on October 13, 1874, one Watson being added to the former commissioners; that plaintiff performed the services and incurred the expenses set forth in an account filed with the petition; but that, before any taxes were assessed for the work, and after the services in question were rendered, the County Court rescinded its order, revoked the appointment and stopped the work, and refused to pay any of the commissioners. The account is for various items of services and expenses rendered and incurred by plaintiff during October, November, and December, 1874, amounting altogether to $70. The answer is a general denial. It also sets up that the act in question is in violation of the Constitution of the State, and that the alleged appointment was for that reason, and for other reasons set out at length, null and void. The trial was by the court without a jury. There was a finding and judgment for defendant, and plaintiff brings the cause here by writ of error.

On the trial, the parties introduced in evidence the records of proceedings held from time to time in the County Court of St. Charles in regard to the matter in controversy, from which it appeared that on August 12, 1874, four persons claiming to own together about three thousand seven hundred and ninety-three acres of the land in question presented to the County Court a petition, accompanied by proof of notice by publication, in which they alleged that the drainage in question was practicable, offered to pay their proportion of the expense, and prayed that the work be ordered. On the same day, plaintiff and two others were appointed commissioners by the County Court to examine the premises, decide the location and dimensions, make estimates of the costs, and report at an adjourned term to be held on the first Monday of September. It was further ordered that the petitioners execute a bond to cover all costs of this proceeding. On the same day, the bond was filed and approved. It is executed by two of the petitioners, with another person as surety, in the sum of $300, conditioned that, should the County Court decide the proposed improvement to be impracticable, the parties to the bond will pay all costs and expenses, including pay of commissioners incurred by the preliminary survey. The commissioners then qualified; and on September 8th they filed their report, which purports to be accompanied by maps, profiles, and estimates of costs not set out in the record. The report is to the effect that, after survey made by an engineer, and careful examination by the commissioners, they find the work impracticable; that the swamp could not be kept dry at the time of plowing, without a system of pumping; and that the cost would be out of all proportion to the benefits. The commissioners decline to recommend the work. On September 18th a remonstrance was presented to the County Court, signed by forty-two objectors, who do not say that they are owners of property to be affected by the proposed work. On October 13th a new commissioner was appointed, and on October 20th the commissioners were directed to invite bids. In accordance with this order, they issued a notice on October 23d for bids for the work. On January 7, 1875, objections in writing to the proposed work were presented to the County Court by eighteen objectors, claiming to be owners of lands affected. The objectors were heard on January 23d, and the court, having considered the matter, on that day found that a majority in interest have not given satisfactory evidence that the proposed improvement is practicable, and have not declared their willingness to pay their just proportion of expenses of the improvement; it was therefore ordered that the appointment of commissioners be revoked. Evidence was also introduced by plaintiff that, on September 8th, October 13th, and December 16th, accounts of some of the commissioners, for services rendered by them and costs incurred under their appointment, were allowed by the County Court, and warrants ordered upon the treasury for the amounts allowed. There was also evidence as to the value of the services, and that they were rendered, and, generally, that the bill of items filed...