Pemiscot County v. McCarty
| Decision Date | 13 January 1919 |
| Parties | PEMISCOT COUNTY et al., Plaintiffs, v. STERLING H. McCARTY, Judge, Defendant |
| Court | Missouri Supreme Court |
Writ issued.
Charles E. Bragg and Gallivan & Finch for plaintiffs.
(1) If there was any basis, in the record made in the county court for the exercise of any "superintending control" on the part of the circuit court, such superintending control could have been exercised by the writs of mandamus or certiorari. St. Louis Co. Court v. Sparks, 10 Mo 123; Bennett v. McCaffery, 28 Mo.App. 221. And, as no appeal could lie under the statutes and the decisions of this court, such superintending control could be exercised only by one or the other of such writs. Sheridan v Fleming, 93 Mo. 325; State ex rel. v. St. Louis Co Court, 47 Mo.App. 647; Barnett v. Pemiscot County Court, 111 Mo.App. 700. (2) The county court had full authority under the statutes to arrange contracts between different drainage districts for such an outlet as one might need and the other could furnish "on such terms as the county court may decide to be just and fair." R. S. 1909, secs. 5613, 5614 and 5628. (3) The appellate jurisdiction, in any case, is purely of statutory origin. Expressio unius exclusio alterius est. The drainage statute itself states the cases wherein appeals will lie from the county court to the circuit court. All other cases are excluded; and, therefore, no appeal lies in such other cases. (4) In the absence of constitutional inhibition, it is within the power of the Legislature to prescribe the cases in which and the courts to which parties shall be entitled to bring a case for review, and to impose such conditions and restrictions as it may see fit. 3 Corpus Juris, 297; John v. Paullin, 231 U.S. 583, 58 L.Ed. 381; Schuepbach v. Laclede Gas Light Co., 232 Mo. 611; Reetz v. Michigan, 188 U.S. 508, 47 L.Ed. 566; State v. Thayer, 158 Mo. 62; State v. Mericle, 245 Mo. 549; State v. Virron, 164 Mo.App. 212; State v. Short, 250 Mo. 333; State v. Brown, 153 Mo. 578; State ex rel. v. Woodson, 128 Mo. 514; Drainage District v. Railroad, 216 Mo. 715; Buschling v. Ackley, 270 Mo. 173; State v. Pieski, 248 Mo. 715. (5) The proceeding by appeal was entirely unknown to the common law. It is of civil law origin, and was introduced therefrom into courts of equity and admiralty. 3 Corpus Juris. 316; Wingfield v. Neall, 10 L. R. A. (N. S.) 449; State v. Thayer, 158 Mo. 62. (6) The remedy by appeal in actions of law is purely of statutory origin and exists only when given by some statutory provisions. 3 Corpus Juris, 316; Bussiere v. Sayman, 257 Mo. 308; Barnes v. Missouri Valley Constr. Co., 257 Mo. 175; Star Bottling Co. v. Exposition Co., 240 Mo. 641; Western T. & T. Co. v. Dr. Dist., 226 Mo. 420; Owens v. Matthews, 226 Mo. 78; State v. Broaddus, 216 Mo. 342; Millar v. Transit Co., 216 Mo. 103; Thomas v. Elliott, 215 Mo. 598; State v. Woodson, 128 Mo. 407; Sheridan v. Fleming, 95 Mo. 321; State ex rel. v. McElhinney, 241 Mo. 608; Ackerman v. Green, 201 Mo. 243. (7) Drainage laws are purely statutory proceedings both as to tribunal and the character of the proceedings; were unknown to the common law, and are special and constitutional; and the provisions of the code of civil procedure are not applicable thereto. Buschling v. Ackley, 270 Mo. 173; State ex rel. Hancock v. Spencer, 166 Mo. 285; State ex rel. Wells v. Hough, 193 Mo. 615; Leavenworth Ter. Ry. v. Atchison, 137 Mo. 218; Rothan v. Railway, 116 Mo. 143; Nishnabotna Dr. Dist. v. Campbell, 154 Mo. 151; Anderson v. Pemberton, 89 Mo. 64; Railroad v. Townsite Co., 103 Mo. 457.
Ward & Reeves and N. C. Hawkins for defendant.
(1) The right of appeal from the county court to the circuit court existed in this matter, and it was the proper and only method by which the action of the county court could be supervised, superintended or reviewed. (a) No other method, save an appeal would do more than bring up the record proper, which record proper had been "fixed" so as to make it invulnerable, as it was thought, to attack. (b) The inhibitions on the right of appeal, set out in Section 5592, R. S. 1909, relied upon by plaintiffs, apply to and only to a proceeding to organize a drainage district, and not to a proceeding to enlarge, clean out, remove obstructions therefrom or do new work, as contemplated by Section 5613, R. S. 1909, and Sec. 5614, Laws 1913, p. 279, the latter being in the very nature of things intended to become operative only after a long lapse of time and under changed conditions. (c) Even if the inhibitions in Section 5592 did apply to such a proceeding as this, they do not apply to this particular proceeding, which was begun under the Act of 1913. State ex rel. v. Taylor, 224 Mo. 490; State ex rel. v. Bugg, 224 Mo. 537. (d) The judgment of the court extended the life of the district beyond the period for which it was originally incorporated, undertook to give a money judgment in favor of one district and against another, destroyed the plan of reclamation originally adopted by it, created a lien upon the lands of the district, without regard to whether or not any one tract would be benefited or damaged; it plunged each district into entangling alliances with all the others, virtually consolidating the five systems into one district, and gave to Elk Chute Drainage District (a district over which the county court did not have and never can have control) the power to control the other four districts and forever deprived the other four districts of the right of self determination. It expended money for lands in Elk Chute Drainage District, at values fixed by that district and wherein no one interested in any of the four other districts had any authority to be heard. It expended money entirely outside of the respective districts, and entirely outside of Pemiscot County. It was not such a judgment as might be rendered by the county court upon the undisputed facts, or under the statement as filed, or authorized by law. (2) The total amount of tax levied upon this district for the first and now proposed improvement, exceeds the grand total of benefits originally determined. It is fundamental and no authorities are needed to sustain the assertion, that such a proceeding is a clear denial of the rights of those who are not benefited, among them being these objectors. Unless an appeal is prohibited, it is granted. King's Lake v. Jamison, 176 Mo. 564; State ex rel. v. Taylor, 224 Mo. 490.
OPINION
In Banc
Prohibition.
This proceeding, originally instituted in this court (by Pemiscot County, the three judges of the County Court of said county, Drainage District No. 6 of Pemiscot County, and approximately two hundred and fifty landowners of said drainage district), seeks to prohibit the Hon. Sterling H. McCarty, Judge of the Circuit Court of Pemiscot County, from taking further judicial action in a certain drainage proceeding.
The drainage proceeding originated before the County Court of Pemiscot County under the provisions of Section 5613, Revised Statutes 1909, and Section 5614, Laws 1913, page 279, and was, after proceeding to judgment in the county court, attempted to be taken on appeal to the said circuit court for trial de novo.
The contention of the plaintiffs is, that there was no right of appeal from the order or judgment of the county court and hence the circuit court acquired no jurisdiction to proceed with the matter.
Defendant filed his return in this court and thereafter plaintiffs moved for judgment on the pleadings.
The following may be stated as the conceded facts:
Drainage District No. 6 of Pemiscot County, comprising about 83,500 acres, was duly organized March 11, 1907, by an order of the County Court of Pemiscot County, under what is sometimes called the "County Court Drainage Act," which will now be found (except as to subsequent amendments) in Article 4, Chapter 41, Revised Statutes 1909.
The defendant herein is the judge of the judicial circuit which embraces Pemiscot County.
On April 6, 1918, proceeding under and by virtue of Section 5613, Revised Statutes 1909, and Section 5614, Laws 1913, page 279, a written petition or statement (signed by the two-hundred and fifty landowning plaintiffs herein, which purported to be more than twenty per cent of the number of persons owning land in said drainage district and a majority of the acreage of said district), was filed with the county clerk of said county. Said petition alleged in substance that certain ditches in said drainage district were in need of being enlarged, cleaned out, and of having obstructions removed and new work done, to afford adequate outlets for the drainage of said district.
The county court thereupon set the same for hearing to the first day of its May term, 1918, and caused notice thereof to be published as required by law.
Upon the appointed day the county court appointed a competent surveyor to examine the ditches of the district and report his observations back to said court.
On May 14, 1918, the surveyor filed his report showing the work which he deemed necessary to be done to fully and fairly reclaim the land, together with an estimate of the cost thereof, whereupon certain persons owning land in said district filed their "objections, exceptions and remonstrances."
The cause was then continued until June 3, 1918, for the purpose of permitting all interested persons, who might so desire, to file objections and exceptions.
On June 3, 1918 one-hundred and ten other land-owners of said district filed objections and exceptions.
On June 4, 1918, the county court was of the opinion that before ordering the work done in said...
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