Mound City Land & Stock Co. v. Miller

• Decision Date: 26 November 1902
• Citation: 70 S.W. 721,170 Mo. 240
• Parties: MOUND CITY LAND AND STOCK COMPANY et al. v. MILLER et al.; DAVIS, Appellant
• Court: Missouri Supreme Court

70 S.W. 721

170 Mo. 240

MOUND CITY LAND AND STOCK COMPANY et al. v. MILLER et al.; DAVIS, Appellant

Supreme Court of Missouri, First Division

November 26, 1902

Appeal from Holt Circuit Court. -- Hon. Gallatin Craig, Judge.

Affirmed.

S. F O'Fallon and C. A. Anthony for appellant.

(1) The badges of private corporations are: (a) Formed by voluntary association, the court may exclude some lands, but the limits are fixed by the signers of the articles; no inquiry as to practicability; (b) Corporators, shareholders, property votes, not men; (c) Limited as to time, public corporations perpetual; (d) Divested of all state and county supervision not a political subdivision of the State. The county court the proper guardian of county affairs; no control here; (e) By forming little independent districts would lead to endless conflict. Drainage of "contiguous borders of overflowed lands and levee districts should be left with counties having control of whole territory; (f) Twenty small holders can not form a drainage corporation if three large holders have the majority of land, but the three might force the twenty. Rights should be the same to all, large or small owners. (2) Has the General Assembly, under the Constitution of 1875, power to create corporations of this class? County of Livingston v. Darlington, 101 U.S. 411. The words, "or other municipal corporations," under the good rule of ejusdem generis, must be limited to the classes enumerated, and can not mean "drainage districts." St. Louis v. Laughlin, 49 Mo. 559; State v. Schudman, 133 Mo. 111. The maxim, "expressio unius," excludes "drainage districts," and applies "as well to constitutions as it does to statutes." Bank v. Graham, 147 Mo. 257; State ex rel. v. Seibert, 123 Mo. 435. Our Constitution, article 2, section 20, treats "drains and ditches across the lands of others for agricultural and sanitary purposes" of like character as "private ways of necessity," the only exceptions where private property may be taken for private use, "with or without compensation." Can the Legislature avoid this provision of section 20, article 2, by creating drainage districts and calling them public corporations? This construction in no manner conflicts with Morrison's case, 146 Mo. 543, where "the levee district is constituted by the county court laying out the district." Here A. et al. "form a drainage district," sign articles of association, go into the circuit court to compel E. and others to join them. Where the county court has jurisdiction to form drainage districts there is no warrant for individuals doing same.

Henry T. Alkire and John Kennish for respondents.

(1) The power of the Legislature to enact this statute can not be questioned, unless the statute is in violation of some provision of the Missouri Constitution or the Federal Constitution. Ex parte Roberts, 166 Mo. 212; Heman v. Allen, 137 Mo. 544; State v. Bixman, 162 Mo. 21; Railroad v. Smith, 62 Ill. 273; County of Livingston v. Darlington, 101 U.S. 407; 25 L.Ed. 1015. (2) The drainage district is a public, not a private, corporation. Morrison v. Morey, 146 Mo. 543; Harward v. St. Clair Drainage Co., 51 Ill. 130. (3) No provision of either the Constitution of Missouri or the Constitution of the United States is violated by the statute. Kansas City v. Ward, 134 Mo. 172; Hagar v. Reclamation District, 111 U.S. 701; Rutherford v. Maynes, 97 Pa. St. 78; Turlock Irrigation Dist. v. Williams, 76 Cal. 360; Garrett v. St. Louis, 25 Mo. 514; St. Louis v. Rankin, 96 Mo. 505; Spencer v. Merchant, 125 U.S. 355; Daily v. Swope, 47 Miss. 367; Emery v. San Francisco Gas Co., 28 Cal. 346. (4) The constitutional provision as to maximum rate of taxation is not violated. Morrison v. Morey, supra; Kansas City v. Bacon, 147 Mo. 259. (5) The title of the act, both that of the original and that of the amended act, is within the constitutional requirement and valid. State ex rel. v. Ransom, 73 Mo. 88; State v. Bennett, 102 Mo. 361; State ex rel. v. Jackson Co. Court, 102 Mo. 537; State v. Bockstruck, 136 Mo. 352; State v. Whitaker, 160 Mo. 70; State ex rel. v. Firemen's Fund, 152 Mo. 45. (6) The formation and powers of such corporations as the one in question have been uniformly sustained by this court. Egyptian Levee Co. v. Hardin, 27 Mo. 495; Morrison v. Morey, supra. The Egyptian Levee Company case is followed in: St. Joseph v. Anthony, 30 Mo. 537, a street paving case; St. Joseph v. O'Donoghue, 31 Mo. 345, same; St. Louis v. Oeters, 36 Mo. 456, a sewer case; St. Louis v. Clemens, 36 Mo. 467, a street improvement case; Columbia Bottom Levee Co. v. Meier, 39 Mo. 53, a case of reclaiming overflowed lands; Farrar v. St. Louis, 80 Mo. 379, a street paving case; Kansas City v. Ridenour, 84 Mo. 253, a sewer case; St. Louis v. Ranken, 96 Mo. 497, a street widening case; Independence v. Gates, 110 Mo. 374, a street grading case; St. Joseph v. Owen, 110 Mo. 445, a sewer case; Morrison v. Morey, 146 Mo. 543, a levee district case. The distinction drawn by the court in State ex rel. v. Leffingwell, 54 Mo. 458, 474, emphasizes the principle upon which the constitutionality of the Drainage Act rests. Kansas City v. Ward, 134 Mo. 178.

MARSHALL, J. Valliant, J., absent.

OPINION

MARSHALL, J.

This is a proceeding, under sections 6517 et seq., Revised Statutes, 1889 (being now secs. 8251 et seq., R. S. 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 six hundred and forty acres, to-wit, of about twenty-three thousand 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 February 22, 1900, the defendants filed an answer specifying sixteen principal objections, and five 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. 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. The statute under which the petitioners propose to incorporate makes a discrimination between 'resident owners' and non-resident owners of 'swamp or overflowed lands' situate in the State of Missouri, and thereby violates the Constitution of the United States.

"4 The court had no jurisdiction of the subject matter.

"5. 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 rights in attempting to make him a member of the 'corporation' against his will.

"10. 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 objector's lands.

"16. 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, and 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 June 29, A. D. 1899, and that a summons was duly issued thereon to each and every and all of the resident defendant land owners 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 services of such summons and entered their appearance herein, as will fully appear in their said several written waivers duly signed and filed herein, and that all non-resident 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...