State ex inf. Gentry v. Hughesville Special Road Dist. No. 11 of Pettis County
| Decision Date | 18 May 1928 |
| Docket Number | 28765 |
| Citation | 6 S.W.2d 594,319 Mo. 1246 |
| Parties | The State ex inf. North Todd Gentry, Attorney-General, v. Hughesville Special Road District and W. L. Smith et al., Commissioners |
| Court | Missouri Supreme Court |
Ouster denied.
North T. Gentry, Attorney-General, and Hibbard C Whitehill, Special Assistant Attorney-General, for relator.
(1) A proceeding to incorporate a special road district is a judicial proceeding and therefore requires notice to all parties interested. State ex inf. Hales v. Walker 301 Mo. 115; State ex inf. v. Dougan, 305 Mo. 383. (2) The provisions of the statute authorizing the incorporation of a special road district must be substantially complied with before the county court can establish such district. Sec 10834, R. S. 1919; State ex inf. v. Colbert, 273 Mo. 198; State ex inf. v. Dougan, 305 Mo. 383. (3) An order incorporating a road district with boundaries different from those described in the petition filed with the county court and without notice of any change in the boundaries and without an amended petition being filed, is a void proceeding as a whole, and directly involves the court's jurisdiction, and its judgment is a nullity. State ex inf. v. Colbert, 273 Mo. 209; State ex inf. v. Dougan, 305 Mo. 383. (4) The county court cannot make "any change" in the boundaries of the proposed district, which does not conform to the petition filed with the clerk in the first instance, or which does not conform to an amended petition that may be filed in the proceedings. State ex inf. v. Colbert, 273 Mo. 208; State ex inf. v. Dougan, 305 Mo. 383. (5) A county court when acting judicially acquires jurisdiction only by strict compliance with the statute giving it authority to act; and all facts necessary to confer jurisdiction and make valid an act of such court must affirmatively appear upon the face of its record. State ex inf. v. Colbert, 273 Mo. 208. (6) The district as laid out by the county court does not comply with the requirements of the statute which provides that the district shall "contain at least six hundred and forty acres of contiguous territory." The district attempted to be laid out by the county court does not comprise "contiguous" territory as provided by statute. Laws 1913, p. 677; Sec. 10833, R. S. 1919; Bolen Coal Co. v. Ryan, 48 Mo.App. 515; 13 C. J. 112.
Paul Barnett for defendants.
(1) Where there is a palpable omission in the description of real estate in a deed, will or other instrument, the omission may be supplied by judicial construction, if there is sufficient data furnished by the instrument to supply the omission. Deal v. Cooper, 94 Mo. 62; Hoffman v. Riehl, 27 Mo. 554; Thomson v. Thomson, 115 Mo. 57; Nichols v. Boswell, 103 Mo. 151; Presnell v. Headley, 141 Mo. 187. If the omission is palpably one which the mind readily supplies from the other data furnished by the instrument, the court of law will not reform the instrument, but will construe it to be sufficient as it stands. Presnell v. Headley, 141 Mo. 187; Deal v. Cooper, 94 Mo. 62; Thomson v. Thomson, 115 Mo. 57. The description is made certain by naming the landowners, giving the number of acres owned by each, and by giving the total number of acres. (2) The constructive service was sufficient. If the description in the decree was sufficient, it follows that it was also sufficient in the notice. The rule that process by publication will be strictly construed is based upon the fact that such process is contrary to the course of the common law. Harness v. Cravens, 126 Mo. 233; 32 Cyc. 467. A substantial compliance with the provision for notice of an application for organizing a drainage district has been held sufficient. 19 C. J. 650. Substantial compliance with the statute requiring notice of an application to establish a public road is always held sufficient, except as against one whose property is sought to be condemned. 37 Cyc. 65, note 64.
This is an original proceeding in the nature of quo warranto instituted by the Attorney-General for the purpose of testing the legality of the incorporation of the respondent, Hughesville Special Road District. Upon the filing of the information all of the respondents entered their appearance, waived the issuance and service of a writ, and answered. The information alleged that respondent special road district purported to be organized under and in accordance with the provisions of Article 8, Chapter 98, Revised Statutes 1919; it then proceeded to set out in consecutive order each step taken in the proceedings which culminated in an alleged order of incorporation by the county court. The answer admitted all the allegations of fact, but averred that the conclusions of law drawn therefrom by informant were erroneous. Following the filing of the answer, the Attorney-General moved for judgment on the pleadings. There is therefore no dispute as to facts.
On the 30th day of June, 1919, a petition signed by the owners of a majority of the acres of land within a district proposed to be organized and setting forth the proposed name of the district, and giving the boundaries thereof and the number of acres owned by each signer of the petition, and the whole number of acres embraced therein and the names of other owners of land within such boundaries, and the number of acres owned by each, and praying for the organization of a public road district in accordance with said Article 8, was filed in the office of the Clerk of the County Court of Pettis County. The boundaries of the proposed district were described in the petition as follows:
"Beginning at a point on the township line at the south east corner of the south west quarter (S. W. 1/4) of Section thirty-three (33) township forty-seven (47) of range twenty-one (21), thence running west along and with said township line six and one-fourth (6 1/4) miles to the south west corner of section thirty-three (33) township forty-seven (47) of range twenty-two (22) thence north one (1) mile to the north west corner of section thirty-three (33), west 1 mile, thence north two (2) miles to the north west corner of section twenty (20) thence east two (2) miles to the north east corner of section twenty-one (21) thence north one (1) mile to the north west corner of section fifteen (15) thence east one (1) mile to the north east corner of section fifteen (15) thence north two (2) miles to the township line, being the north west corner of section two (2), thence east along and with said township line four and one-fourth miles (4 1/4) to the north east corner of the north west quarter (N.W. 1/4) of section four (4) of township forty-seven (47), range twenty-one (21) thence south along the half section line three (3) miles to the north east corner of the north west quarter (N.W. 1/4) of section twenty-one (21) thence east one-half (1/2) mile to the north east corner of section twenty-one (21), thence south one (1) mile to the south east corner of section twenty-one (21), thence west one-half (1/2) mile to the south west corner of south east quarter (S. E. 1/4) of section twenty-one (21) thence south two (2) miles along and with half-section line to the point of beginning, containing in all twenty-two thousand, three hundred eighty acres, more or less, all being and lying in township forty-seven (47) north of ranges twenty-one (21) and twenty-two (22) west."
Upon the filing of such petition the county clerk gave notice of its presentation by publication in accordance in all respects with the provisions of Section 10834, Revised Statutes 1919, except in this: the description of the boundaries of the proposed district in the published notices, purporting to follow that contained in the petition, omitted the words "west 1 mile," which we have italicized.
As to the further steps taken in the matter of the incorporation we quote from the information:
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