In re Yellow Creek Drainage Dist.

Decision Date08 May 1922
Docket NumberNo. 22783.,22783.
Citation240 S.W. 203
PartiesIn re YELLOW CREEK DRAINAGE DIST. OF CHARITON COUNTY. BONDURANT et al. v. BOARD OF SUP'RS OF YELLOW CREEK DRAINAGE DIST. OF CHARITON COUNTY,
CourtMissouri Supreme Court

Appeal from Circuit Court, Chariton County; Fred Lamb, Judge.

Application by the Board of Supervisors of Yellow Creek Drainage District of Chariton County to dissolve the corporation, to which F. L. Bondurart and others objected. From a decree dissolving the corporation, objectors appeal. Appeal dismissed.

This suit originated in the circuit court of Chariton county instituted by certain land owners of that county. The petition was in proper form and signed by the requisite number of property owners and prayed the court to incorporate the Yellow Creek drainage district of said county. Said proceedings were had under what is known as the Circuit Court Drainage Act (Rev. St. 1919, §§ 4378-4438). A decree pro forma incorporating the district was entered September ___ 1916, and thereafter a board of supervisors was duly elected, and later the board elected Clark E. Jacoby as chief engineer, and also employed assistant engineers to prepare and present to the board for adoption a plan for reclamation as provided by said act.

The board, after going over two tentative plans proposed by said engineers, rejected both of them, and directed the engineers to do no further work on the "plan for reclamation

Thereupon the board filed in said court an application for dissolution of the corporation. The papers as stated, show this petition to have been filed on August 14, 1918. No record entry of any kind of the filing thereof was made until September 13, 1918, although a so-called "Notice of Drainage Hearing" over the name of the clerk, with seal of court attached, was printed in a weekly newspaper of said county for four consecutive issues, the last being more than one week prior to the first day of the term.

On the first day of the term following— that is, the first day of the September term, 1918—a proof of publication of the notice was filed, and a record entry made of such filing. Nothing further appears of record in said cause of any kind until the September term, 1920, at which time the objectors, appellants herein, filed, by leave of court their objection to and remonstrance against the court dissolving said district. The cause was then continued to the regular February term 1921 of said court. At said term the evidence of three witnesses was heard by the court.

This consisted of the evidence of Mr. Jacoby, chief engineer, in which he stated that he, with his assistant engineers, had prepared and proposed two plans to the board, both of which were rejected by the board, and they were directed to do no further work until they received notice so to do; that they never received any notice to do any further work and nothing further had been done; that this was more than three years prior to the hearing of this cause.

Mr. G. I. Taylor was the next witness called, who testified that he had always opposed the formation of the district and the improvement proposed with the formation of the district; that he was finally elected to the board of supervisors, which put those opposed to the improvement in control of the board; that the board of supervisors, then controlled by objectors to the whole improvement, were not willing to adopt any plan submitted to them by the engineers; that they rejected the plan proposed by the engineer because they thought the cost too high,' and thereupon they directed and procured the filing of the application for a dissolution of the corporation.

Mr. Angus Kennedy, was the next witness. He testified that he was also opposed to the whole improvement from the beginning; that the board decided that the cost of the proposed improvement according to the plans offered by the engineer was too high, and they therefore refused to adopt the same.

Upon the record and evidence thus offered the court entered a decree finding that the board could not adopt a feasible plan because the cost would be too great in proportion to the benefits and entered its decree dissolving the corporation.

Objectors thereupon filed motions for new trial and in arrest, which were both overruled, and thereafter by proper steps have brought this case here on appeal for final determination by this court.

In the meantime officers' and other expenses incidental to the maintenance of the corporation were going on, when finally it was determined by the board that the only thing to be done was to have the corporation dissolved; whereupon directions were given to the district's attorney to take such action as would bring about that result. Hence the proceedings for dissolution were instituted as previously stated.

This petition came up for hearing at the September term, 1918, in the circuit court, the court receiving the evidence in support of it, and, it appearing to the court that there was a large amount of unpaid bills standing against the district, no judgment of dissolution was entered, but the board of super. visors were directed to discharge their financial obligations, and, when they could report back to the court that that had been done, a judgment of dissolution would be entered. Up to this point this course had been accepted, apparently by all, as the only feasible course to take, even those who believed that the contemplated improvement was practical and feasible; because of the overwhelming opposition to it, nothing could be done, and that the continued maintenance of the corporation was a useless expense. But after this hearing in September, 1918, and after an additional tax levy had been made and collected for the purpose of discharging the outstanding obligations against the district, and after these obligations had been discharged, these objectors came into court and filed their objections to the proposed dissolution, whereupon evidence was again offered and heard by the court touching the matters presented in the board's petition for judgment of dissolution, and it appearing to the court at that hearing that all the financial obligations of the district had been discharged, and it further appearing to the court that it was impossible for the board of supervisors to adopt a plan for reclamation which, in their judgment, was a feasible plan, and it appearing to the court that the cost of the contemplated improvement would be in excess of all benefits that could be derived therefrom, the judgment of dissolution was entered, from which judgment the objectors appealed.

W. E. Suddath, of Warrenburg, for appellants.

J. A. Collet, of Salisbury, for respondent.

WOODSON, P. J. (after stating the facts as above).

Counsel for appellants insist that the Drainage Act mentioned is sufficient unto itself and provides an exclusive method for the formation of districts and the proceedings necessary to be taken to dissolve the same, and cited the case of In re Drainage Dist., 270 Mo. 157 loc. cit. 1730 192 S. W. 727. In discussing this question this court in the case cited, on page 173 of 270 Mo., on page 732 of 192 S. W., said:

"Counsel for appellants also insist that under section 2038, Revised Statutes 1909, the general statute governing appeals applies in this case, and cite in support thereof State ex rel. v. Riley, 203 Mo. 175. Counsel misinterpret the ruling in that case. There we use this language: `We are of the opinion that in drainage cases the modes of procedure and the rules of practice prescribed by our Civil Code may be used to supply omissions in the drainage statutes'—clearly indicating that the general statutes could not displace statutes especially applicable to drainage cases.

"The Drainage Act, being purely a statutory proceeding, both as to the tribunal and the character of the proceedings, was unknown to the common law, and the act is special and constitutional, and the provisions of the Code of Civil Procedure are not applicable thereto. In its present amended form it is a Code unto itself. It is in all respects as to its provisions like the election law, forcible entry and detainer...

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9 cases
  • State ex rel. Becker v. Wellston Sewer Dist., 31656.
    • United States
    • Missouri Supreme Court
    • March 21, 1933
    ...of Mo.; Sec. 1 of Fourteenth Amendment to Const. of U.S.; McManus v. Park, 287 Mo. 109; McGhee v. Walsh, 249 Mo. 266; Yellow Creek Drg. Dist. of Chariton Co., 240 S.W. 203; State v. Julow, 129 Mo. 174; Hawkins v. Smith, 242 Mo. 688, 147 S.W. 1042; Presbytery v. First Presby. Church, 80 N.J.......
  • State ex rel. McKittrick v. Bair
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    ...1, 14th Amend. of Constitution U.S.; McManus v. Park, 287 Mo. 109; McGhee v. Walsh, 249 Mo. 266; Yellow Creek Drg. Dist. of Chariton Co., 240 S.W. 203; State v. Julow, 129 Mo. 174; Hawkins v. Smith, 242 Mo. 688, 147 S.W. 1042; Presbytery v. First Presby, Church, 80 N.J.L. 572, 78 Atl. 210; ......
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    ...of Mo.; Sec. 1 of Fourteenth Amendment to Const. of U.S.; McManus v. Park, 287 Mo. 109; McGhee v. Walsh, 249 Mo. 266; Yellow Creek Drg. Dist. of Chariton Co., 240 S.W. 203; State v. Julow, 129 Mo. 174; Hawkins Smith, 242 Mo. 688, 147 S.W. 1042; Presbytery v. First Presby. Church, 80 N. J. L......
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