In re Big Lake Drainage District
| Decision Date | 05 December 1916 |
| Citation | 190 S.W. 261,269 Mo. 161 |
| Parties | In re BIG LAKE DRAINAGE DISTRICT, Appellant, v. B. G. ROLWING |
| Court | Missouri Supreme Court |
Appeal from Scott Circuit Court. -- Hon. R. G. Ranney, Special Judge.
Reversed and remanded.
J. L Fort, Boone & Lee and Russell & Joslyn for appellant.
(1) A strict construction of a statute is a close adherence to the literal interpretation, and a case is excluded from its operation unless the language of the statute includes it while a statute liberally construed may be extended to include cases clearly within the mischief intended to be remedied, unless such construction does violence to the language used. Lagler v. Bye, 85 N.E. 36; Moore v. Company, 164 Mo.App. 165; Priest v Capitain, 236 Mo. 446; State v. Company, 87 P. 286; Regent v. Company, 112 Mo.App. 271; State v. Taylor, 224 Mo. 455. Laws relating to drainage and protection to overflowed lands should not receive so narrow and restricted construction as courts give to laws governing the assessment and collection of revenue. State v. Bates, 235 Mo. 262. (2) The plan of reclamation is sufficient if it sets forth particularly the facts that the statute requires to be stated therein if the statute itself is valid. Drainage Dist. v. Railroads, 236 Mo. 94; Naum v. District, 113 Mo.App. 575. (3) The chief engineer must consent to changes in the plan of reclamation made by the board of supervisors. He is not required to consent to the recommendations made by him because he could not recommend without consenting. In this case, the engineer made his recommendation. The statute does not require of the board of supervisors to act upon the recommendations of the engineer. Laws 1913, p. 237, sec. 10. (4) Neither the district nor the landowner is bound by the recitals in the record of the proceedings of the board of supervisors, unless those recitals are true. The recitals are competent evidence of the facts recorded, and required by law to be recorded, but not exclusive. Paving Co. v. O'Brien, 128 Mo.App. 282. (5) It is plain that the record of the board of supervisors may be supplied by parol evidence, and any recital in that record may be shown by parol to be false, or it may be shown by parol that certain proceedings were had, which were not put upon the record. Sheehan v. Hospital, 50 Mo. 155; Lamar v. Lamar, 128 Mo. 188; Houck v. District, 248 Mo. 373. (6) If no objections are made by the landowners to the appointment of commissioners by a disqualified judge until after the commissioners' report is filed, and evidence heard upon exceptions thereto, they will be deemed to have waived any objection to the court's jurisdiction. Drainage Dist. v. Richardson, 237 Mo. 49; State ex rel. v. Foard, 189 S.W. 71. (7) The action of the board of supervisors in modifying the plan of reclamation did not injure the exceptor. If the exceptor was not satisfied with the modification he should have taken the matter before this court on a writ of certiorari. This is a collateral attack upon the plan of reclamation, and it cannot be made such an irregularity as the modification aforesaid. State v. Taylor, 224 Mo. 455.
Haw & Brown, Oliver & Oliver and James A. Finch for respondent.
(1) A construction upholding the proceedings that were set aside by the judgment of the lower court in this instance would be more than liberal; it would be loose construction, leaving out of consideration many of the positive requirements of the statutes. Drainage Dist. v. Harris, 184 S.W. 91. The incorporation of a drainage district by a circuit court is a right conferred upon said court by the statute of the State. It is a special power conferred upon the circuit court by the act itself and where a court of general jurisdiction is proceeding in the exercise of special powers, wholly derived from the statute, and not according to the course of common law, its jurisdiction must appear on the record and cannot be presumed, even in a collateral proceeding. Eaton v. St. Charles County, 76 Mo. 492; St. Louis v. Glasgow, 254 Mo. 262; Ellis v. Railroad, 51 Mo. 200. (2) No plan for reclamation was adopted by the board of supervisors, and therefore the court was never vested with jurisdiction to appoint commissioners. (a) The chief engineer of the district never submitted to the board of supervisors a plan for reclaiming the lands in the district. This duty is mandatory and forms the basis of the entire reclamation structure. Secs. 9, 10 and 26, Laws 1913, pp. 237-250; Drainage Dist. v. Railroad, 236 Mo. 94; State ex rel. v. Sheppard, 245 Mo. 50. (b) This "true and perfect copy of the record of said board" affirmatively shows that the board of supervisors never decided and determined upon "the plan for reclamation," but specifically and directly refused to adopt the plan on the 4th day of October, 1913, and deferred the decision of that matter until another meeting. Secs. 10 and 12, Laws 1913, pp. 237-238. (c) An alteration and erasure of a record entirely within the possession and control of the district, apparent on the face of the record, imposed a duty upon the district to satisfactorily explain the alteration to the court before the record was entitled to be admitted in evidence. The court sustained the objection and the district attempted to make the explanation. After a full hearing and examination of the record itself, the court excluded the offering. Such action was not error. Lawson on Presumptive Evidence, Rule 85, p. 389; 7 Am. & Eng. Ency. Law, p. 272-6; Wigmore on Evidence, sec. 2525; Kelly v. Thuey, 143 Mo. 433; Hays v. Bayliss, 82 Mo. 209. The party who produces an altered instrument is generally bound to explain the alteration or erasure, if it is a material point. Jackson v. Osborn, 2 Wend. 555; Chappell v. Spencer, 23 Barb. 584; Tillon v. Ins. Co., 7 Barb. 564; Acker v. Ledyard, 8 Barb. 514. (d) Even if the entry on the record of the board of supervisors, made long after the date of the secretary's certificate to and the filing of the plan for reclamation, had been otherwise competent, it was totally incompetent for the reason that it had never been certified to the clerk as a part of the plan for reclamation, and the commissioners, had they been properly appointed, could not have been guided in appraising rights of way and assessing benefits or damages by this order. (3) In condemnation of the rights of way for ditches inside and outside of said drainage district, the court is now required to follow, as near as possible, the procedure that is now provided for by law for the condemnation for rights of way for telegraph, telephone and railroad purposes. Laws 1913, p. 241, sec. 16, and p. 249, sec. 26. And in proceedings for the condemnation of lands by telegraph, telephone and railroad corporations the petition must set forth "the general direction in which it is desired to construct its road, telephone or telegraph line over such lands, and a description of the real estate or other property which the company seeks to acquire, and an averment that the company and the owner were unable to agree upon the compensation to be paid for said right-of-way." Secs. 2360, 5513, R. S. 1909; Railroad v. Carter, 85 Mo. 451; Ells v. Railroad, 51 Mo. 203; Railroad v. Young, 96 Mo. 39; Jones v. Zink, 65 Mo.App. 412; Peed v. Barker, 61 Mo.App. 556; St. Louis v. Glasgow, 254 Mo. 262. Supervisors may acquire right of way by purchase. Laws 1913, p. 249, sec. 26. "The refusal of the owner to relinquish is a jurisdictional fact, in the absence of which even a court of general jurisdiction would be powerless by judgment of condemnation to wrest property from its owner." Ells v. Railroad, 51 Mo. 203.
OPINIONIn Banc.
I. This is the second appeal in this case. The facts presented and the points ruled on in the first appeal are set out in In re Big Lake Drainage District; Marshall et al., Appellants, v. B. C. Rolwing, 265 Mo. 450.
In that case it was held that the district was validly incorporated and the circuit court of Scott County was possessed of jurisdiction of all further proceedings to be taken in the case and the judgment of the circuit court, purporting to annul the incorporation of said district, was reversed and the cause remanded for further proceedings.
On the second trial it was shown that a board of supervisors was duly elected, which appointed a chief engineer and assistant that a plan of reclamation was submitted to the board of supervisors, which will be adverted to in the subsequent discussion; that the board of supervisors filed a petition for the appointment of commissioners to appraise the land; that the regular judge of Scott County made an order in vacation appointing commissioners, who made a report of their acts and doings as such, which, together with the exceptions thereto filed by respondent, was heard by Judge Ranney, who was appointed and called as special judge on account of the disqualification of the regular judge; that on September 3, 1915, the court sustained the exceptions of respondent, B. C. Rolwing, for the reasons alleged in its judgment: first, that no plan of reclamation was ever adopted or filed by the board of supervisors of said Big Lake Drainage District, as required by law, and, second, that the report of the commissioners filed on March 16, 1914, purported to deprive the exceptor and others of their property for the use of the district without due process of law, in that said report sought to condemn their property for rights of way and storage basins without having made an effort to agree with the owners upon the price to be paid for such property and without, after failing to agree, having stated such failure in a petition for the condemnation of such lands; wherefore the court found the issues for the exceptor, B. C. Rolwing,...
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