King's Lake Drainage And Levee District v. Jamison
| Decision Date | 02 July 1903 |
| Citation | 75 S.W. 679,176 Mo. 557 |
| Parties | KING'S LAKE DRAINAGE AND LEVEE DISTRICT, Appellant, v. JAMISON |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jas. E. Withrow Judge.
Affirmed and remanded to county court.
John H Overall for appellant.
(1) (a) No appeal lies from order of county court establishing district and approving report of commissioners, and therefore the court had no jurisdiction to hear this appeal. (b) Appeal is allowed only where the circuit court can give such judgment as the county court should have given, and nowhere is the circuit court in this State given authority to establish drainage districts. Bean v. Barton County Court, 33 Mo.App. 644; Aldridge v. Spears, 40 Mo.App. 530; Foster v. Dunklin County, 44 Mo. 216; In re Saline County, 45 Mo. 52; Railroad v. St. Louis, 92 Mo. 160; State ex rel. v. Clark County Court, 41 Mo. 44; Sheridan v. Heming, 93 Mo. 321; Scott Co. v. Leftwitch, 145 Mo. 33. (2) Seaman, appointed by the county court of Lincoln county as one of the commissioners in said matter, was a competent person to act as such commissioner, although his wife had an interest in lands within the district, as contemplated in the original petition for the organization of the district. In re Southern Boulevard, 3 Abb. Prac. (N. S.) 447; Laws 1893, p. 189, sec. 5; Wilbraham v. Commissioners, 11 Pick. 322; Philip v. County Commissioners, 122 Mass. 258. (3) The said Seaman, appointed by the county court of Lincoln county one of the commissioners in said matter, was not, at the date the boundaries of said district were altered by said court, interested in lands within the limits of said proposed district, nor was he, at the date of the filing of exceptions by appellant, interested in lands within the limits of said proposed district. (4) No objection was made and no question raised as to qualification of the other two commissioners appointed with said Seaman, and said other two commissioners constituted a quorum, as provided by section 8 of the drainage law, and said other two commissioners concurred in all matters within the duties of said commissioners, and by said section 8 the said concurrence of said other two commissioners, a majority of the number of commissioners appointed, was sufficient to the determination of all said matters within the duties of said commissioners. Crowell v. Londonderry, 63 N.H. 42; In re Southern Boulevard, supra. (5) As it is not charged by the exceptor that commissioner Seaman was influenced by any interest his wife may have had in lands within the district originally contemplated, or that exceptor has suffered prejudice or wrong by reason thereof, the court should not refuse to confirm the report of commissioners in the absence of affirmative evidence that exceptor did not know of such condition when appointment was made, and that he has suffered damage thereby. Doddrige's Suprs. v. Stout, 9 W.Va. 703; Bradley v. Frankfort, 99 Ind. 417. (6) The attempted appeal of respondent is not based on exceptions to report of the commissioners assessing benefits and damages and, therefore, even if the court should conclude that the term "competent," as used in the act means "disinterested," still respondent ought not to be permitted to wait until work is all done and report of commissioners filed before making his objections to the qualifications of commissioner Seaman. Bradley v. Frankfort, 99 Ind. 417.
Charles Martin and F. N. Judson for respondent.
(1) (a) The case was appealable, being an exercise of a judicial and not a mere administrative power. An appeal was therefore properly taken to the circuit court and from that court to the Supreme Court. Savannah v. Hancock, 91 Mo. 54; In re Big Hollow Road, 40 Mo.App. 363, 111 Mo. 326; Regina v. Aberdare Canal Co., 14 Ad. and L. N. R. (Q. B.) 854; R. S. 1889, secs. 3318 and 3434; Cox v. Drake, 34 Mo.App. 82; In re Webster, 36 Mo.App. 355. (b) Under section 14 of the Act of 1893, remonstrances may be filed and appeal taken on all questions raised by the remonstrances affecting the validity of the assessment for damages. Anderson v. Pemberton, 89 Mo. 64; Whitely v. Platte County, 73 Mo. 30; Colville v. Judy, 73 Mo. 651; In re Petition of Gardner, 41 Mo.App. 589; Spurgeon v. Bartlett, 56 Mo.App. 349. The language of the act admits of no other construction. (c) Appeal to the Supreme Court must of course mean that the right of appeal is to be exercised in the only way in which the Supreme Court can correct errors of that tribunal, that is, in the exercise of its appellate jurisdiction over the circuit court. (2) The ruling of the circuit court that Seaman was an incompetent commissioner was clearly correct. He was personally interested in regard to the interests of his wife as he had an inchoate estate of curtesy. He was really judge in his own cause. Taylor v. County Commissioners, 105 Mass. 225; Oakley v. Aspenwall, 3 N.Y. 546; State ex rel. v. Wofford, 111 Mo. 529; Broome's Legal Maxims (6 Am. Ed.), p. 118. The proceedings in such a cause are essentially judicial, and judicial hearing is essential to constitute due process of law. Norwood v. Baker, 172 U.S. 269. The cases cited by appellants as to the qualifications of commissioners in opening highways are not in point. The duties in the case at bar were not administrative, but judicial, involving the taking of citizens' property.
This is a proceeding to establish a drainage and levee district, under the provisions of the Act of 1893 (Laws 1893, p. 188), being now article 5, of chapter 122 (R. S.) 1899, sections 8318, et seq. The proceeding was commenced in the county court of Lincoln county. The land proposed to be included in the drainage district lies partly in Lincoln county and partly in Pike county, the larger part being in Lincoln county. A petition purporting to be signed by the "adult owners of more than one-half of the lands thereinafter described" was presented to the county court, accompanied by an affidavit of three of the signers to the effect that they had examined the petition and were acquainted with the locality of said district, "and that said petition is signed by the adult owners of more than one-half of the lands embraced in said district." The defendant was one of the petitioners, but afterwards by a letter addressed to the attorney for the remonstrants, attempted to withdraw his name from the petition.
Remonstrances were filed by certain owners of land in the district. Notice was given by setting up handbills in five public places in the district, by delivering a copy to the owner of each tract of land, or by leaving a copy at the last usual place of abode of such owners, and by publication for three weeks in certain newspapers in Lincoln and Pike counties. The petition and remonstrance was heard by the county court at its May term, 1894, to-wit, on July 9, 1894, and taken under advisement, till the regular August term, 1894, when the county court granted the prayer of the petition, and appointed W. J. Seaman, W. H. Baskett and Frank L. Wilson, commissioners to lay out and construct the work, and required them to give a bond for $ 80,000.
During the same term the commissioners made their report, by which they changed the boundaries of the district as proposed in the petition and assessed the total damages at $ 2,731.67, and the total benefits at $ 36,253.79, and, inter alia, omitted from the district certain land belonging to Fannie Seaman, the wife of commissioner W. J. Seaman. The defendant Jamison was allowed $ 205.56 damages, and charged with $ 5,726 benefits to his 1,577 acres of land lying in the district. He filed nine exceptions to the report of the commissioners, the fifth of which was as follows: "Fifth, because one of the commissioners appointed by the court, namely, W. J. Seaman, was not a competent person to act, in that he was then and now is interested in lands within the limits of said proposed district."
At the May term, 1895, the county court overruled the exceptions and entered judgment approving the report of the commissioners, establishing the drainage district, under the name of King's Lake Drainage and Levee District, and declaring it to be a body corporate. The defendant, Jamison, filed an affidavit for an appeal, and gave bond in the sum of $ 100, and was allowed an appeal to the circuit court of Lincoln county. In December, 1895, the circuit court of Lincoln county ordered the venue changed to the circuit court of St. Louis, for the reason that the judge of the circuit court of Lincoln county had become interested in land in the district.
On the 7th of January, 1897, the plaintiff moved the circuit court to dismiss the appeal, assigning as grounds: " The circuit court overruled the motion to dismiss on the 22d of December, 1897. The case came on for trial on June 12, 1899, and the exceptor, to sustain the issues on his part, introduced the transcript of the cause from the Lincoln Circuit Court, which embraced the record of the proceedings before the county court of Lincoln county and testimony as to the Ashbaugh land which will be referred to later. The plaintiff then introduced parol testimony which showed that the commissioner, W. J. Seaman, owned no property within either the proposed or established drainage district, but that his wife owned 270 acres of...
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