70 S.W. 721
170 Mo. 240
MOUND CITY LAND & STOCK CO. et al.
MILLER et al.
Supreme Court of Missouri, Division No. 1.
November 26, 1902.
DRAINAGE—CONSTITUTIONAL LAW—BENEFITS —SPECIAL ASSESSMENTS—TRIAL BY JURY —DUE PROCESS OF LAW.
1. Findings of fact on conflicting evidence will not be reviewed.
2. Const. art. 2, § 20, provides that no private property can be taken for a private use, with or without compensation, unless by consent of the owner, except for private ways of necessity, and except for drains and ditches across the lands of others for agricultural and sanitary purposes in such manner as may be
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prescribed by law. Held, that the section has no application to proceedings under the drainage law (Rev. St. 1899, § 8251 et seq.), providing for establishment of drainage districts, condemnation of rights of way for ditches, the laying of assessments for benefits, etc.
3. Rev. St. 1899, § 8251, providing for the establishment of drainage districts, the laying of assessments for benefits, etc., and the election by the residents of the district of a board of supervisors to manage the business, is not unconstitutional, as creating a private corporation for the improvement of private property, and forcing private individuals to become members of such corporation against their will.
4. The authorization of such assessments is valid.
5. That an owner is rendered liable for the assessment against his will does not affect the validity of the law.
6. Rev. St. 1899, § 8251, providing for the establishment of drainage districts, the condemnation of land for ditches and assessments of benefits is not unconstitutional, as depriving one of the right to trial by jury, no right to jury trial in such case having been accorded by the common law or the constitution.
7. As, under the statute, a property owner is entitled to a day in court before his property is brought within the district, the statute is not unconstitutional, as a taking of property without due process of law.
8. Rev. St. § 8251, authorizing the establishment of a drainage district by the majority in interest of the owners of swamp lands, is not invalid because of the fact that each owner is entitled to one vote for each acre owned by him.
Appeal from circuit court, Holt county; Gallatin Craig, Judge.
Proceedings by the Mound City Land & Stock Company and others to have a drainage district incorporated. Dina Miller, James P. Davis, and others filed an answer, and from a finding in favor of the applicants defendant Davis appealed. Affirmed.
This is a proceeding under section 6517 et seq., Rev. St. 1889 (being now 8251 et seq., Rev. St. 1899), to have incorporated Squaw Creek drainage district No. 1, in Holt county. The proceeding was instituted in the circuit court of Holt county on July 2, 1899, by the filing of articles of association and a petition for incorporation by a majority of the resident owners of a contiguous body of swamp and overflowed lands, embracing an area in excess of 640 acres, to wit, of about 23,000 acres. The petition conforms to the requirement of the statute in respect to what shall be stated, and is signed by the majority of the resident owners. Proper notice was given, and on the 22d of February, 1900, the defendants filed an answer specifying 16 principal objections and 5 sub-objections to the incorporation of the drainage district. But of these nine raised questions of fact, which were found against the defendants by the trial court, and are not open to review here, for the reason that no evidence is preserved by this record, and the bill of exceptions only states that there was evidence pro and con; and also because this court will not review the findings of fact by the trial court where the evidence is conflicting. The other seven objections raise questions of law, and are as follows: "(1) The proposed incorporation or organization is not warranted by the statute, and is in violation of the constitution of the state of Missouri. (2) That it is an attempt to delegate the police power that should be enforced by the proper officers and tribunals of the state to private individuals. (3) That the statute under which the petitioners propose to incorporate makes a discrimination between resident owners and nonresident owners of swamp or overflowed lands situate in the state of Missouri, and thereby violates the constitution of the United States. (4) That the court had no jurisdiction of the subject-matter. (5) That by this class of so-called corporations there is not only an attempt to take objector's property against his will, but a violation of personal right in attempting to make him a member of the corporation against his will." "(10) That the power of assessment and taxation that the so-called corporation or organization sought to be given the organizers or corporations would, if exercised, create an unreasonable burden upon objectors' lands." "(16) Your objectors further say said drainage district should not be organized as asked, and made a corporation for the following reasons: (a) There is no public necessity therefor. (b) The corporation would entail burden on your objectors and others like situated without corresponding benefit. (c) The said drainage district is in fact a private corporation when organized under this plan, and your objectors should not be made members thereof against their wills. (d) The drainage district proposed would be neither a public corporation nor of public utility. These articles, as proposed, are defective in not stating a place or location of its business office. (e) The proposed incorporation or organization attempts to subject the property and lands of your objectors to burden and taxation without providing a right of a jury trial."
The case was tried by the circuit court of Holt county, and the following finding and judgment entered by that court:
"And the court now here being further and fully advised in the premises finds that said petition and articles of association were duly signed and filed in the office of the clerk of this court on the 29th day of June, A. D. 1899, and that a summons was duly issued thereon to each and every and all of the resident defendant landowners who did not waive service of such summons, and that service was duly had on each, every, and all of said defendants not so waiving same, as is fully shown by the return of service by the sheriff of this county herein filed, more than thirty days before the first day of the January term, A. D. 1900, of this court; and that such other resident defendants and landowners interested duly waived the issue and service of such summons, and entered their appearance herein, as will fully appear in their
[70 S.W. 723]
said several written waivers, duly signed, and filed herein; and that all nonresident defendants and landowners not served with summons or waiving the same have been duly and legally notified of the pendency of this proceeding by publication as provided by law. And the court also now being further informed and advised in the premises finds from the evidence adduced that the said petition and articles of association so filed herein were and are duly signed by a majority in interest of the resident owners of the contiguous body of swamp and overflowed lands described in said petition and articles of association, situate, lying, and being wholly in Holt county, Missouri, and that said lands constitute an area exceeding six hundred and forty acres in extent, to wit, about twenty-three thousand acres in all, which is and was sought to be incorporated and formed into such drainage district for the purpose of having such said lands reclaimed and protected from the effects of water by such drainage or otherwise. And the court further finds that for the purpose of organizing and incorporating such drainage district the said petitioners, a majority of the resident landowners of such body of swamp and overflowed lands in said county, have signed articles of association in which the name of said district is stated to be `Squaw Creek Drainage District No. 1,' and that the number of years that the same is to continue is fifty years, and that the limits of the same, and the names and places of residence of the owners of lands in said district owned by those proposing to organize the same and join the said organization of said district, and the names of all owners of lands in said district, and the description of lands owned by each, who are or will be benefited by such organization, but who refuse to join in such organization and incorporation. And the court further finds that by the terms of said articles of association the said owners of real estate so forming the said drainage district for said drainage purpose are willing to and have obligated themselves to pay the tax or taxes that may be assessed to pay the expenses of said organization, and to make the improvements that may be necessary to effect the drainage of said lands so here proposed to be formed into said drainage district, and which said articles of association are as follows: [setting them out in full.] "Wherefore, the premises considered, the court doth now here order, adjudge, and decree: That the said drainage district be, and the same is hereby, formed, created, organized, and incorporated in accordance with said articles of incorporation so signed by the said petitioners and filed herein, as drainage district with the boundaries as hereinbefore set out and described; said district to include all the lands in said boundaries described, except such as have been by said petitioners excepted, and the finding of the court herein, on objections duly filed, not to be benefited by such proposed ditch, drains, dikes, or other improvements sought to be effected, as hereinbefore set out and described, and referred to in the court's findings. That the lands so excepted and excluded shall in no form or manner be assessed with any taxes...