In re Big Lake Drainage District

• Decision Date: 29 June 1915
• Citation: 178 S.W. 110,265 Mo. 450
• Parties: In re BIG LAKE DRAINAGE DISTRICT; W. T. MARSHALL et al., Appellants, v. B. G. ROLWING
• Court: Missouri Supreme Court

178 S.W. 110

265 Mo. 450

In re BIG LAKE DRAINAGE DISTRICT; W. T. MARSHALL et al., Appellants, v. B. G. ROLWING

Supreme Court of Missouri

June 29, 1915

Appeal from Scott Circuit Court. -- Hon. R. G. Ranney, Judge.

Reversed and remanded.

Boone & Lee and J. L. Fort for appellants.

(1) The appeal of R. P. Whitesell and Clara Whitesell from the decree incorporating Big Lake Drainage District to this court, in which said appeal is now pending, does not operate as a supersedeas of any proceedings which said district might have or take if said appeal was not pending in this court. Laws 1913, p. 253, sec. 36; Simpson v. County, 173 Mo 475. (2) "A corporation may have more than one name; it may have one in which to contract, grant, etc., and another in which to sue and be sued; so it may be known by different names, and may sue and be sued in either; and the name of the president, his official name or names of some kind, in which all the affairs of the company may be conducted. So much and no more, is essential to give simplicity and effect to the operation." Thomas v. Dakin, 22 Wend. (N. Y.) 9; 1 Clark and Marshall's Corporations, secs. 1150-51; 10 Cyc. 150; Newport v. Starbird, 10 N.H. 123; Skillman v. Clardy, 256 Mo. 311. There is no ambiguity or lack of clearness in the name given to the district by the decree. Missouri v. Holschlag, 144 Mo. 253. The difference between the names given to this district are not essential -- they are about the difference between a hair 'twixt north and northwest side. Skillman v. Clardy, 256 Mo. 321; 13 Cyc. 624; 1 Clark and Marshall, Corp., sec. 52; King v. Fink, 51 Mo. 212; Adler v. Company, 92 Mo. 249. (3) The circuit court of Scott county had full and complete power and jurisdiction over the subject-matter of the proceedings and over the persons of the landowners. Laws 1911, p. 206-7 secs. 5496-99; Paul v. Fulton, 25 Mo. 156; Henks v. Deb, 1 Mo.App. 402; Barnes v. Railroad, 119 Mo.App. 303. The jurisdiction of the court must be determined by the amount claimed regardless of the amount which may be found to be due by the court or jury. 11 Cyc. 775; Funk v. Funk, 35 Mo.App. 246; Payne v. Weems, 36 Mo.App. 54. (4) The articles of association take the place of a petition in an ordinary civil action while objections to the incorporation take the place of answers, and either may be amended as any other pleading and the law should be liberally construed. Laws 1911, p. 207, sec. 5499; State v. Bates, 235 Mo. 262. (5) All jurisdictional facts need not appear in the articles of association but may be shown by the evidence. The legality of the organization of the district cannot be inquired into in this proceeding unless the proceedings are void on their face. Smith v District, 299 Ill. 155; State v. Weithaupt, 254 Mo. 326. (6) The report of the commissioners bound nobody, as the commissioners were the agents of the court and the court might adopt their report, modify it or reject it altogether. There is nothing jurisdictional in the report of the commissioners. R. S. 1909, sec. 5516; Laws 1911, p. 212, secs. 5518-5518a; Tarkio v. Richardson, 237 Mo. 68.

J. M. Haw, James A. Finch and Oliver & Oliver for respondent.

(1) The circuit court of Scott county was without authority, power and jurisdiction to incorporate the Big Lake Drainage District, after the articles of association had been amended by striking therefrom more than nine hundred acres of land situated in Scott county. The amended articles of association disclose the fact that there was a greater acreage of land in Mississippi county than was then in Scott county. This is a jurisdictional fact that must appear on the face of the petition or articles of association. Laws 1911, p. 206, sec. 5496; Johnson v. Dietrich, 152 Mo. 243; Owens v. Pierce, 5 Mo.App. 575; Kartzendorfer v. St. Louis, 52 Mo. 204; Bobb v. Bobb, 89 Mo. 418; Elliot v. Secor, 60 Mo. 163; Ross v. Land Co., 162 Mo. 329; Underwood v. Bishop, 67 Mo. 374; Locke v. Bowman, 168 Mo.App. 131; Shantz v. Scriner, 167 Mo.App. 643. (2) The attempted incorporation of the land described in the articles of association under the name of "Big Lake Drainage District" is not in accord with the name set out in the articles themselves, nor is it in accord with the prayer of the petition or articles of association, praying for the incorporation. Laws 1911, p. 206. (3) The original articles of association did not say that the petitioners were "the owners of a majority of the acreage" of the land sought to be incorporated. The recital is: "We, the undersigned, a majority in interest of the owners of a contiguous body of swamp and overflowed land." This recital did not confer any jurisdiction or warrant the filing of the articles at all. Evidently the petitioners came to realize this fact and attempted to amend, but this record nowhere shows that they were ever given authority or permission by the court to amend their articles in this behalf. Johnston v. Dietrich, 152 Mo. 243. (4) The court was without jurisdiction to incorporate said drainage district, because of the appeal of R. P. and Clara Whitsell to this court. 23 Cyc. 682; Cohn v. Lehwan, 93 Mo. 586; Leavenworth v. Atchison, 137 Mo. 218.

BLAIR, J. Woodson, C. J., and Graves, Brown and Walker, JJ., concur; Bond, J., concurs in the result; Faris, J., not sitting.

OPINION

In Banc

BLAIR J.

This is an appeal from a judgment of the circuit court of Scott county declaring null and void a decree of the same court incorporating the Big Lake Drainage District under article one of chapter forty-one of the Revised Statutes of Missouri of 1909 as amended in 1911 (Laws 1911, p. 205).

The record shows that the articles of association for the proposed district were filed in the circuit court of Scott county, March 7, 1912, and that after a showing of service of process upon those landowners (with one exception) upon whom such service was required by the statute, and after a guardian ad litem had been appointed for minors concerned, the matter of incorporation was, upon April 15, 1912, submitted upon the articles of association and certain motions, objections and exceptions and taken under advisement; that on June 24, 1912, the submission was set aside and leave was granted to strike out the name and lands (eighty acres) of Emily Brown, who had not been served with process; that thereafter and on the same day the court entered its decree incorporating the district under the name of the Big Lake Drainage District, first having found that the articles and service of process complied with the statutory requirements. The court found, specifically, that of the 19,300 acres proposed by the articles of association to be included in the district, the major portion thereof was in Scott county. The decree sets forth the boundaries of the district formed. These boundaries as defined by the decree did not include either the eighty acres of Emily Brown or about four hundred other acres in Scott county which were shown to have been stricken from the articles of association by the court itself after the evidence was all in and before the decree of incorporation was entered. The elimination of the four hundred acres in Scott county reduced the number of acres in that county to such an extent that of the land which remained the major portion was situated in Mississippi county. The decree recited, among other things, that the district was "formed, created, organized and incorporated in accordance with said articles of association so signed by said petitioners and filed herein as a drainage district with the boundary hereinbefore set out and described as amended," said district to include "all the lands in said boundary described, except such as have been stricken out by amendments by permission of the court herein," and thereafter set forth the boundaries of the district as incorporated.

Subsequently a landowners' meeting was held, a board of supervisors elected and a chief engineer and assistant engineers selected. In due time the board of supervisors reported to the court, as adopted by them, the report of the board of engineers upon a plan for reclamation. November 13, 1913, the court appointed commissioners to appraise land required for rights of way and holding basins and to assess benefits and damages. March 16, 1914, these commissioners filed their report, of which notice was given, and thereafter, on April 11, 1914, respondent Rolwing filed exceptions upon numerous grounds, including one that the Scott County Circuit Court lost jurisdiction when the articles of association were so amended that the acreage in Scott county became less than that in Mississippi county. Most of the other exceptions related to the report of the commissioners and the plan for reclamation. Upon May 9, 1914, respondent's exceptions were taken up and the evidence heard and the exceptions submitted to the court on May 16, 1914, and the cause continued to May 18, 1914. On May 18, 1914, respondent filed a plea to the jurisdiction of the court. The first ground of this plea was that at the time the decree of incorporation was entered the "articles of association, as amended, show that the circuit court of Scott county was without jurisdiction to enter said pretended decree of incorporation because there were more acres of land in Mississippi county, Missouri, within the boundaries of said district, than there were acres in Scott county within the boundaries of said district." Other grounds of the plea attack the plan for reclamation and the commissioners' report and the sufficiency of the notice of the filing of the latter. Another sets up that "no petition was ever filed in the circuit court of Scott county praying for the incorporation of the Big Lake Drainage District."

Upon the...