Honey Creek Drainage District v. Investment Co.

• Decision Date: 18 November 1930
• Docket Number: No. 29781.,29781.
• Citation: 32 S.W.2d 753
• Parties: HONEY CREEK DRAINAGE DISTRICT v. FARM CITY INVESTMENT COMPANY, Appellant.
• Court: Missouri Supreme Court

32 S.W.2d 753

HONEY CREEK DRAINAGE DISTRICT v. FARM CITY INVESTMENT COMPANY, Appellant.

No. 29781.

Supreme Court of Missouri, Division One.

November 18, 1930.

Appeal from Livingston Circuit Court. — Hon. Ira D. Beals, Judge.

AFFIRMED.

James W. Davis and Arch B. Davis for appellant.

(1) Under the provisions of Sec. 4416, Laws 1923, p. 167, it is necessary that the notice to property owners of the filing of a petition to extend the boundaries shall give notice that a petition has been filed to extend the boundaries of such district and that such notice shall "describe said land by sections and parts of sections." The notice given of the filing of petition recites that four sections are sought to be annexed to Honey Creek Drainage District and "that the land located in the above named sections be annexed." It was not sought to annex all of the land in said sections, and the parts of such sections which are sought to be annexed are not described in the notice, as required by said statute. The motion to quash the notice should have been sustained. (2) A legal notice, with an opportunity to defendants to invoke their actual defenses, is a condition precedent to the validity of any legal proceedings. State v. Timber Co., 178 S.W. 93, 274 Mo. 663; Shanklin v. Boyce, 275 Mo. 5; Drainage District v. Timber Co., 315 Mo. 597. (3) The notice of the filing of the petition is the process of the court which brings the landowners and their property under the jurisdiction of such court. It is jurisdictional. Hull v. Railroad, 21 Neb. 371, 32 N.W. 168. In order for service by publication to confer on the court jurisdiction, all the statutory requirements must be successively and accurately taken. Rochford v. Bailey, 17 S.W. (2d) 945; Charles v. Morrow, 95 Mo. 646; 21 R.C.L. 1293, sec. 36. (4) The petition to extend the boundaries of the district can only be filed by the board of supervisors for and on behalf of the district, or by a majority of the property owners. Sec. 4416, Laws 1923, p. 167. This petition was not filed by either the board of supervisors for and on behalf of the district or by the owners of a majority of the land in the proposed extension. The addition of the words descriptive of their alleged agency was merely descriptive of the persons who filed the petition, and does not apply to them in their asserted official character. 47 C.J. 177, sec. 328; 18 C.J. 968-9; 1 A. & E. Eney. Law (2 Ed.) 1043; Jones v. Johnson, 178 Pac. 984; Sumwald v. Ridgely, 20 Md. 114; Fiske v. Eldridge, 12 Gray (Mass.) 474; Morrow v. Shofer, 49 N.E. (Ind. App.) 190; Bennett v. Whitney, 94 N.Y. 306. (5) There being no proof that the persons who instituted the proceeding to extend the boundaries constituted the board of supervisors, the finding should have been in favor of appellant. (6) The original decree attempting to incorporate Honey Creek Drainage District was and is void because the petitioners therein sought the incorporation of said district under the act found in Laws 1913, p. 232. Therefore, said petition did not confer jurisdiction upon the court to incorporate said district under the then existing law. (7) The only law authorizing the extension of boundaries of drainage districts is Section 4416, as amended, Laws 1923, page 167. This statute violates the Fourteenth Amendment to the Constitution of the United States and Sections 20, 21 and 30 of Article II and paragraphs 25 and 26 of Section 53 of Article IV of the Constitution of Missouri. The court had no right under this unconstitutional statute to attempt to extend the boundary of said district over the lands of appellant. (8) Said sec. 4416, Laws 1923, p. 167, is further unconstitutional under the aforementioned provisions of the Constitution because said statute does not require that a petition for the extension of boundaries shall allege as a fact that the lands within the proposed extended boundaries and especially appellant's land therein were to be taken and taxed for a public necessity or a public benefit and did not require the court to find that the inclusion of appellant's lands within said district to be for a public necessity or for a public benefit. Said statute denies the appellant a hearing or trial on the question as to whether its land will be benefited by the proposed construction or by the inclusion of the same within the boundaries of said drainage district and denies appellant and others the right to a hearing and determination of the question as to whether their lands will be actually benefited by the construction of the proposed improvement. And also deprives the court of the right to determine whether the proposed use for which appellant's property is to be taken is really a public use, in violation of Sec. 20, Art. II, Constitution of Missouri. Said statute is unconstitutional because it does not require a finding by the court that the tracts within the extended boundaries were actually benefited for taxation purposes or otherwise by being included within the boundaries of said drainage district. Said statute arbitrarily requires the court to include said land in said drainage district if the court should find either "that it is swamp, wet and overflow land, or lands subject to overflow, or, has an outlet in common with lands in the district." Thereby depriving appellant of its property without due process of law, in violation of said provisions of such constitutions. It is further unconstitutional because, under said provisions of the Constitution, it limits the objections that can be made by the landowner to the extension of the boundaries to "a denial of the statements in the petition" (for extension), and does not require said petition to state any issuable fact; thereby precluding appellant, as a landowner from legally or rightfully asserting numerous good and valid objections to the extension, and requiring the court to reject and not consider any objection made that does not amount to a denial of the statement in the petition. It also deprives the court of the right to judicially determine whether the purpose for which appellant's property is to be taken is a public use, in violation of Sec. 20, Art. II, Constitution of Missouri. (9) The evidence fairly shows that the object of this extension is for the benefit of the land located in the north end of the original Honey Creek Drainage District and in the south end of the Grundy County Honey Creek Drainage District, and not for the benefit of the lands in the extension. (10) The trial court erred in refusing to permit appellant to show by its cross-examination of one of the petitioners that their main object in wanting appellant's land annexed was to require the owners of land in the extended territory to pay for the improvement of the lands in the original district.

F.L. Arthaud for respondent.

RAGLAND, J.

This is an appeal from the judgment of the Circuit Court of Livingston County, extending the boundaries of Honey Creek Drainage District, located in said county. The record shows in a general way that Honey Creek flows in a southerly direction through Grundy County and thence through Livingston County and into Grand River. The lands in Grundy County which were subject to flood waters from its overflow have been reclaimed and protected by drains and ditches constructed by a drainage district, established some eight or ten years ago, which extends south to the boundary line between Grundy and Livingston counties. On March 9, 1927, Honey Creek Drainage District in Livingston County was incorporated by a decree of the circuit court. As so incorporated its boundaries extended south to the bottom lands of the Grand River valley. Following its incorporation a board of supervisors was elected, and the board in turn appointed a chief engineer to make the necessary surveys and recommend a plan for reclamation. Subsequently the engineer filed his report in writing which, among other things, showed, or purported to show, that the land lying between the district and Grand River on the south would derive the same benefits from the proposed plan of reclamation that the lands in the district would receive. Thereupon, on the 21st day of July, 1927, and before the appointment of commissioners to assess benefits and damages, the petition for the extension of the boundaries, constituting the basis of this proceeding, was filed.

The petition so filed is in part as follows:

"Comes now A.M. Howard, L.L. Lauderdale, Roy E. Prewitt, Charles Mitts and Frank Treadway, all and the only members of the board of supervisors of the Honey Creek Drainage District of Livingston County, Missouri, a corporation organized and incorporated by the Circuit Court of Livingston County, Missouri, on the ninth day of March, 1927, by its decree duly made and entered on that date.

"Said district being organized under the provision of Article One (1), Chapter Twenty-eight (28), Revised Statutes of 1919, as amended thereafter, and said supervisors for and on behalf of said Honey Creek Drainage District file and present this, their petition.

"Said supervisors show to the court that said Honey Creek Drainage District is a corporation, incorporated by the decree of this court on March 9th, 1927, under the provision of Article One (1), Chapter Twenty-eight (28), Revised Statutes of 1919.

"That after so incorporating, the owners of land and other property in said drainage district, upon due and legal notice of the time and place of meeting, met and elected the above named supervisors of said district, and thereupon after being elected said supervisors qualified by taking the proper oath and are now the duly qualified and acting supervisors of said Honey Creck Drainage District of Livingston County, Missouri... .

"Your petitioners show to the court that by the engineer's report he finds and recommends that the lands adjacent to the boundaries of said district and which land is hereinafter described should be annexed to and...