In re Little Tarkio Drainage District No. One

• Decision Date: 15 July 1911
• Citation: 139 S.W. 576,237 Mo. 49
• Parties: In Re LITTLE TARKIO DRAINAGE DISTRICT NO. ONE v. JOHN D. RICHARDSON et al., Appellants
• Court: Missouri Supreme Court

139 S.W. 576

237 Mo. 49

In Re LITTLE TARKIO DRAINAGE DISTRICT NO. ONE v. JOHN D. RICHARDSON et al., Appellants

Supreme Court of Missouri

July 15, 1911

Appeal from Holt Circuit Court. -- Hon. Wm. C. Ellison, Judge.

Reversed and remanded.

H. K White for appellants.

(1) The proceedings under review were a continuation of the proceedings instituted to establish the drainage corporation. In those proceedings Judge Ellison had granted a change of venue and had disqualified himself, consequently he remained disqualified. Coltrave v. Templeton, 106 F. 370; In re Williams, 123 F. 321; Tabell v. Griggs, 3 Page (N.Y.) 207. (2) The court should have granted a hearing before a jury. R. S. 1909, secs. 5513, 5518, 2364. (3) Under the Constitution, the proceedings are invalid because by Sec. 5516, R. S. 1909, only the cash value of the land taken is to be allowed in reduction of benefits, without allowance for incidental damages. Constitution, sec. 21, art 2; Mills on Eminent Domain, secs. 1, 87, 128, 216; Lewis on Eminent Domain, secs. 10, 240, 607, 608; 2 Dillon, Mun. Corp sec. 453; St. Louis v. Franke, 78 Mo. 41; Moss v. Railroad, 85 Mo. 86; Stuart v. Palmer, 74 N.Y. 183; Bridge v. Bridge, 7 N.H. 56; Bradshaw v. Rogers, 20 Johnson 103; Gardner v. Newberg, 2 John Ch. 162; Thacher v. Bridge, 18 Pick. 501; Eastin v. Amoskeag Co., 44 N.H. 143; Railroad v. Railroad, 2 Gray 1; Schmidt v. Densmore, 42 Mo. 225; Hanbeck v. Franke, 78 Mo. 41; Cox v. Tipton, 18 Mo.App. 150; Lindell v. Railroad, 36 Mo. 543; Admr. v. Railroad, 38 Mo. 483; Railroad v. Weaver, 10 Kan. 344; Parker v. Railroad, 13 Lea, 669; Gutshow v. County, 105 N.W. 548; Hatch v. Reardon, 204 U.S. 160. (4) The statute is void for the further reason that it provides that the whole of the damage for land taken shall be deducted from the benefits as assessed instead of paying them in cash, and permitting the owner to pay benefits as levied afterwards as required of those whose lands are not taken. See cases under point 3. (5) The act is in violation of the Fourteenth Amendment to the Constitution of the United States, which provides that no state shall deny to anyone within its jurisdiction the equal protection of the laws. Railroad Co. v. Wright, 207 U.S. 127; Russell v. Croy, 164 Mo. 69; Railroad v. Reynolds, 183 U.S. 476; In re Van Horne, 70 A. 986; Board v. Johnson, 89 N.E. 594.

Frank Petree and H. B. Williams for respondent.

(1) The fact that Judge Ellison disqualified himself for having formed an opinion on the merits involved in the original proceedings for the incorporation of the drainage district, did not disqualify him from sitting at the hearing of exceptions to the commissioners' report in assessing benefits and damages. The questions involved in the original action for incorporation were: Is the land a contiguous body of swamp and overflowed lands in this state, situated in one or more counties? Does the land embraced in the proposed district contain more than six hundred and forty acres? Are the articles of association signed by a majority in interest of the owners of the land included within the boundaries of the proposed district? Sec. 5496, R. S. 1909. Under the provisions of Sec. 5518, R. S. 1909, the judge of the court shall, in a summary way, hear and determine the questions contained in the commissioners' report. The questions involved in the commissioners' report relate to the amount of damages and benefits accruing to the lands and property in the drainage district in perfecting the plan for drainage adopted by the board of supervisors. In the proceeding for incorporation, the action was between the signing and non-signing landowners in the proposed district, and when the decree of incorporation was granted, a new person (a corporation) was brought into existence. Thereafter this new person adopted a plan for reclamation of the lands in the district, and filed its petition asking for appointment of commissioners to assess benefits to carry out its plan of reclamation, and the filing of exceptions to the commissioners' report commenced an action between this new person (the corporation) and the exceptors. The parties in the original action for incorporation and in the action on exceptions to the commissioners' report, were not the same. Neither were the questions involved in the original action for incorporation, and those involved in the exceptions to the commissioners' report, the same. Therefore Judge Ellison was not disqualified from sitting at the hearing of exceptions to the commissioners' report. When the decree of incorporation was granted and the landowners met as required by law and elected a board of supervisors, and said board organized, that was an end of the questions involved in the question of incorporating the drainage district. Nothing remained to be done to bring that corporation into existence. It was then a corporation, both de facto and de jure. (2) The court did not err in refusing to grant appellant a jury trial on the issues involved in the exceptions to the commissioners' report. The drainage district is not seeking to take exceptors' land in this action. Said district is not attempting, in this action, to exercise the power of eminent domain. It has only ascertained values as a basis of taxation for local improvements. A city takes property of a citizen for a public street under the power of eminent domain. It raises money to make compensation therefor upon property that is specially benefited by the improvement. There is no law, constitutional or statute, requiring the benefits to be ascertained by a jury. St. Louis v. Buss, 159 Mo. 12. Assessments for public improvements are regarded as a species of taxation, and property owners are not entitled to have the assessments for taxation by a jury. 24 Cyc. 133; Land Co. v. Miller, 170 Mo. 259; Heman v. Schulte, 166 Mo. 419; Nauman v. District, 113 Mo.App. 578.

WOODSON J. Kennish, J., dissents, and Graves, J., expresses no opinion.

OPINION

In Banc

WOODSON, J.

This is the second appeal of this case to this court. The opinion delivered when the case was formerly here is reported in the 227 Mo. 252, which is referred to as forming a part of the statement of this case.

The case was begun in the circuit court of Holt county, in 1908, by T. G. Quinby and others against the appellants and others, by which they sought to have a certain body of land situated in that county incorporated into a drainage district.

The appellants owned several hundred acres of land in that vicinity, a part of which was embraced within the boundaries of said district.

Appellants appealed from the award of the commissioners and filed a motion for a change of venue from Honorable Wm. C. Ellison, judge of that court, alleging prejudice on his part against them.

Subsequent to the filing of that motion, but prior to any action having been taken thereon, appellants also filed objections to the granting of a decree of incorporation as prayed.

A change of venue was granted and the Honorable F. H. Trimble, judge of the Seventh Circuit, was called in to try the cause.

A trial was had before the latter judge, which resulted in a decree incorporating the district. From that decree the appellants here were also the appellants in the former appeal.

After the incorporation of the district the parties interested duly elected a board of supervisors, as provided by law. In due time this board filed in the circuit court, of said county, a petition, asking the Honorable Wm. C. Ellison to appoint commissioners to assess damages and benefits, which would result to the property owners by reason of said improvements.

After Judge Ellison had appointed the commissioners to assess the damages and benefits aforesaid, the board of supervisors undertook to enlarge the district and instituted proceedings to that end, also in the circuit court of Holt county. Thereupon the appellants filed, as I understand the record, a second application for change of venue from Judge Ellison, because of his prejudice.

This application was granted and this branch of the cause was sent to the circuit court of Andrew county, which proceedings for the enlargement of the district were heard and determined in that court, before Honorable A. D. Burnes, judge thereof.

Certified copies of the proceedings had in the Andrew County Circuit Court were transferred and filed in the cause in the circuit court of Holt county.

On July 18, 1910, Judge Ellison, in vacation, appointed C. G. Bostwick, E. L. Gaffney and Joseph Kite commissioners to assess the damages and benefits for the original and the enlarged district.

The commissioners, after having qualified as by statute provided, viewed the premises, assessed the damages and benefits, and duly reported their action to the court.

We omit the formal parts of the report, as they are not questioned. The total cost of the improvements was, by the commissioners, estimated to be $ 53,882.

The following quotation is taken from the statement of the case made by counsel for the appellants, viz.:

"The report and exhibits showed that the proposed ditch would be one hundred to one hundred and twenty feet wide, would run in a general north and south direction, passing through appellants' land described as the north half of section twenty, township 62, range 39. This ditch would enter these lands on the north line thereof, west of the north and south line of the section and then pass southeasterly till it reached the north and south line, and then pass south along the line into other lands within the district; thence beyond the southern line of the district, and empty into Big Tarkio River, a mile or so south of the southern limits of the district.

"The report among other things, recited the following: 'We...