Eaton v. Cnty. of St. Charles

• Decision Date: 23 December 1879
• Citation: 8 Mo.App. 177
• Parties: E. DWIGHT EATON ET AL., Appellants, v. COUNTY OF ST. CHARLES, Respondent.
• Court: Missouri Court of Appeals

8 Mo.App. 177

E. DWIGHT EATON ET AL., Appellants,

v.COUNTY OF ST. CHARLES, Respondent.

St. Louis Court of Appeals, Missouri.

Dec. 23, 1879.

1. The jurisdiction of County Courts being limited, and their powers under the Swamp-Land Act being in derogation of common law, the record must show facts conferring jurisdiction; and in a collateral attack upon orders made in a proceeding under that act, such facts will not be presumed.

2. Jurisdiction to appoint commissioners to make a contract for draining lands under the Swamp-Land Act can be acquired by the County Court only by giving the notice required by statute, after the filing of a petition by the required number of parties in interest.

3. The appointment of such commissioners without such notice is void, and contracts made by them as such commissioners are also void.

APPEAL from the St. Louis Circuit Court.

Affirmed.

T. A. & H. M. POST for the appellants: Where the court has no discretion, but must render judgment according to the facts and the law, its action is judicial.-- In re Saline County, 45 Mo. 52; Cooper County v. Geyer, 19 Mo. 257; 28 Mo. 37; 42 Mo. 348; 44 Mo. 216. In the exercise of its judicial functions, the County Court is a court of record, and the rules and presumptions applying to courts of record and their judgments apply in full force.--Freem. on Judg., sects. 124, 132. The County Court having at one time decided affirmatively upon the jurisdictional questions, and having appointed commissioners in pursuance thereof, did not have power at a subsequent term to inquire into these same facts and declare that they did not exist.-- Ashby v. Glasgow, 7 Mo. 320; Hill v. City of St. Louis, 20 Mo. 584; The State v. Sullivan County Court, 51 Mo. 522; Peake v. Reed, 14 Mo. 79. The County Court having prevented the completion of the contract, gave the plaintiffs a right of action for a breach of the contract.-- Cort v. Ambergate, 20 L. J. (N. S.) Q. B. 460; Fitzgerald v. Hayward, 50 Mo. 516; Green v. Mayor, 5 Abb. Pr. 503; Beard v. Brooklyn, 31 Barb. 142; Morgan v. Dubuque, 28 Iowa, 575.

WILLIAM A. ALEXANDER, for the respondent: A county is not responsible for the acts of its agents, except by positive provision of law.--1 Dill. on Mun. Corp. 95, note 96; Hamilton County v. Mighles, 7 Ohio, 109; Miller v. Iron County, 29 Mo. 192; The State v. St. Louis, 34 Mo. 546; 2 Dill. on Mun. Corp., sect. 762; Reardon v. St. Louis, 36 Mo. 555. The appointment of commissioners was void for want of jurisdiction in the County Court, and the contract made by them was also void.-- Alderson v. St. Charles, 6 Mo. App. 420.

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

This is an action for damages for breach of contract. The contract is alleged to have been made under the provisions of the Swamp-Land Act. Wag. Stats. 872, sects. 30-40. The cause was tried by the court. There was a finding and judgment for the defendant.

It appears from the evidence that on August 12, 1874, Ford and Leighton, representing together three thousand six hundred acres, and three others representing together one hundred and ninety-three acres, petitioned the County Court of St. Charles County, setting forth that they were the majority in interest of the owners of a contiguous body of swamp and everflowed lands in said county, and asking to have them reclaimed. On the same day the County Court appointed two commissioners, to act in conjunction with the road commissioner, “to examine the premises proposed to be improved, and decide on the location, character, and dimensions of the drains, dikes, or other works necessary, in their judgment, to secure the desired result most effectually, and with due regard to economy and stability, and make, or cause to be made an estimate, as accurate as possible, of the costs of the proposed improvements.” The order prescribing the duties of the commissioners is, so far, made in the exact language of the section (Wag. Stats. 872, sect. 31) prescribing the duties of the commissioners. The order further directs that the commissioners shall, before receiving bids, report to an adjourned term, to be held on the first Monday of September next. At the adjourned term, on September 8, forty-two persons presented to the County Court a written protest against the proposed work, saying that if Hostetter's Creek be turned according to the survey, it will overflow and ruin the land of petitioners. On the same day the commissioners file their report, with maps, profiles, and estimates, and say that, after survey by an engineer and careful examination by the commissioners, they find the work impracticable; that the swamp could not be kept dry without a system of pumping, which would cost more than the benefits. On October 13th, which appears to have been the last day of the August term, the County Court again appointed commissioners. This time it named three: Dames and Alderson, before appointed, and Watson, who takes the place of the road commissioner. We may remark here that the law of 1869 provided (p. 63; Wag. Stats. 872, sect. 30) that two commissioners should be appointed to act with the road commissioner, who is to act ex officio; but the amended law, in force at the time of these proceedings, provides (Acts 1873, p. 51) that three commissioners shall be appointed, and says nothing of the road commissioner. This second appointment is made in the exact language of the statute; nothing is said in it about reporting before receiving bids, or about receiving bids. It does not appear that the former appointment was revoked. These new commissioners, on October 23d, advertised for bids, and awarded the contract to plaintiff Eaton. On November 6th they made with Eaton the contract sued on, which is accompanied with specifications, and provides, amongst other things, that the work is to be done under directions of the commissioners, and to be paid for in land-improvement bonds of the county of St. Charles, payable exclusively from taxes derived from the lands benefited, and in accordance with monthly estimates of the commissioners. There was evidence that the other plaintiffs subsequently became interested with Eaton in the contract. On January 4th Watson resigned as commissioner, and on January 15th Johns was appointed and qualified in his place. On January 5th, eighteen protestors filed in the County Court a notice to the commissioner that they should contest the proceedings to drain these lands as illegal and void, and requesting that all work be suspended until a hearing could be had before the County Court. On November 7th, objections in writing to the proposed work were presented to the County Court by eighteen objectors, claiming to be owners of the lands affected. These objectors set forth, amongst other things, that they never had their day in court; that the appointment of commissioners was made at an adjourned term, without an opportunity afforded to present objections; that the majority in interest never petitioned, and never professed willingness to pay their proportion of expense that the lands are not a contiguous body of overflowed lands; that the petitioners for the improvement never gave evidence that it was practicable; that the appointment of commissioners was illegal, and the contract without authority, and the bond of the contractor insufficient. And on the same day the objectors filed a motion to set aside the order appointing commissioners. On January 23d these objections came on to be heard; and the County Court, being satisfied from the evidence that a majority in interest of the swamp lands proposed to be drained have not joined in the petition, and have not given satisfactory evidence that the proposed improvement is practicable, or declared their willingness to pay their just proportion of the expenses, revoked the appointment of commissioners. Immediately thereafter, Alderson, one of those appointed, notified Eaton that the appointment of commissioners was revoked. On April 5th the plaintiffs notified the County Court that they were willing to proceed with the work. Under the contract and the law, they could do nothing without commissioners to supervise the work. The plaintiffs also introduced evidence tending to show that they had spent $900 in preparation for work, had done work under the contract worth $200, and that they would have realized a profit of $9,000 had they been permitted to proceed.

We have already had occasion to consider the provisions of the Swamp-Land Act in the case of Alderson v. St. Charles County, 6 Mo. App. 420, which was an action by the same commissioners appointed in the proceedings just set forth, for compensation for their services. We decided in that case that the commissioners could not recover.

The act provides for the payment of the cost of reclaiming swamp land by taxes to be levied and collected for that purpose, in the manner prescribed by the act. The estimated benefits to the county are to be assessed against the county at large, and the residue of the entire cost against the individuals benefited, in certain...