State ex inf. Killam v. Colbert
| Decision Date | 16 February 1918 |
| Citation | 201 S.W. 52,273 Mo. 198 |
| Parties | THE STATE ex inf. DAVID E. KILLAM, Prosecuting Attorney of Lincoln County, ex rel. T. J. HIGGINBOTHAM et al., Appellants, v. W. Y. COLBERT et al |
| Court | Missouri Supreme Court |
Appeal from Lincoln Circuit Court. -- Hon. Edgar B. Woolfolk, Judge.
Reversed and remanded (with directions).
David E. Killam, Rufus L. Higginbotham, Sutton & Huston and Hostetter & Haley for appellants.
(1) The court erred in ruling that the statute permitted the county court to change the boundaries of the road district as set forth in the original petition, as in its discretion it might determine to be necessary for the public good, without the filing of any remonstrance or an amended petition; such ruling is opposed to both the express language and spirit of the statute. Sec. 10612, R. S. 1909; Laws 1913, p. 678; Embree v. Road District, 240 U.S. 242, 257 Mo. 593. (2) No remonstrances having been filed, it was a jurisdictional prerequisite to the right of the county court to change the boundaries of the road district as set forth in the original petition filed, that an amended petition should have been filed signed by the requisite landowners within the district, describing the boundaries as so changed. State ex rel. v. Wiethaupt, 165 Mo.App. 644; State ex rel v. Wiethaupt, 266 Mo. 313; Bayless v. Gibbs, 251 Mo. 506; State ex rel. v. Heege, 37 Mo.App. 348; State ex rel. v. Seibert, 97 Mo.App. 218; Seafield v. Bohne, 169 Mo. 547; Stutz v Cameron, 254 Mo. 359; State ex inf. v. Bellflower, 129 Mo.App. 146; 7 Ruling Case Law, sec. 57, p. 1029; Charles v. White, 214 Mo. 206; State ex rel. v. Forest, 177 Mo.App. 252; Davidson v. Schmidt, 256 Mo. 19; State ex rel. v. Campbell, 120 Mo. 402; State ex rel. v. Small, 131 Mo.App. 476; State ex rel. v McReynolds, 61 Mo. 203.
John L. Burns and Dudley & Williams for respondents.
(1) The county court had authority to pass upon its own jurisdiction and the presumption of right action should be indulged as to its action on subjects committed to it by statute. Lingo v. Buford, 112 Mo. 149; Belk v. Hamilton, 130 Mo. 292; In Re Breck, 252 Mo. 327; Connors v. City of St. Joseph, 237 Mo. 612; State ex rel. v. Wilson, 216 Mo. 215, 274; State ex rel. v. Mining Co., 262 Mo. 502; Johnson v. Beazley, 65 Mo. 250; Murphy v. De France, 101 Mo. 151. (2) On the foregoing premises, the respondents take the position: 1st. The county court had jurisdiction of the subject-matter of incorporating this road district. Const. Mo., art. 6, sec. 36; Laws 1913, p. 678, secs. 10611, 10612; Hope v. Blair, 105 Mo. 85; Schuback v. McDonald, 179 Mo. 163; Ellis v. Elkins, 130 Mo. 90. 2nd. The county court acquired jurisdiction over the persons and lands in the district by the filing of the petition and publication of the notice shown in the record in this case. Laws 1913, p. 678, sec. 10612; Zeibold v. Foster, 118 Mo. 354; Bennett v. Hall, 184 Mo. 415; Embree v. Road District, 257 Mo. 593, 240 U.S. 242. 3rd. A proper construction of the statute, Laws 1913, p. 678, sec. 10612, imposed upon the county court the duty of protecting the public interests and hence it had power to fix the boundaries with reference to the "public good" independently of the conduct of the non-consenting land owners. Mo. Constitution, art. 6, secs. 1, 36; R. S. 1909, secs. 10463, 10464; Laws 1913, p. 678, secs. 10611, 10612. 4th. The court acted judicially in passing upon the question of its own jurisdiction and incorporating the district and its judgment is not subject to either collateral or direct attack, except for fraud or mistake in the concoction of the judgment itself. State ex rel. v. Flemming, 158 Mo. 558; State ex rel. v. Mining Co., 262 Mo. 504; State ex rel. v. Woods, 223 Mo. 380; State ex rel. v. Haupt, 181 Mo.App. 18; State ex rel. v. Werthaupt, 150 Mo.App. 60; State ex rel. v. Buermean, 186 Mo.App. 701-2; Kansas City v. Winner, 58 Mo.App. 299; Gray v. Bowles, 74 Mo. 419; Embree v. Road District, 240 U.S. 242; 23 Cyc. 1219, par. 14 A, 2, b; Robbins v. Boulware, 190 Mo. 33; Murphy v. De France, 101 Mo. 151. 5th. The statute, Laws 1913, p. 678, sec. 10612, imposes upon the county court the duty of fixing the boundaries with reference to the "public good;" the only limit being that it must not incorporate land not included in the notice without consent of the owners. Hence its action fixing the boundaries is judicial so that an error or mistake is not a matter affecting the jurisdiction of the court. 7 R. C. L. 1045, sec. 79, note 1; Freeman on Judgments (3 Ed.), sec. 135; Friene v. Kirchoff, 176 Mo. 525-531; Hagerman v. Sutton, 91 Mo. 531; Howland v. Railroad, 134 Mo. 479; Hamer v. Cash, 118 Mo. 476; Leonard v. Sparks, 117 Mo. 103.
This proceeding was begun by an information in the nature of a quo warranto filed in the circuit court of Lincoln County by the prosecuting attorney of that county, at the relation of twenty-five persons whose names are given, challenging the right of the respondents to exercise the functions of commissioners of a special road district. The respondents filed their return, alleging that they had been duly elected, had qualified and were acting commissioners of the "Silex & Louisville Road District of Lincoln County," setting out in detail the facts which, as they claimed, showed the organization of such district and their authority to serve as such commissioners.
On the trial of the cause the records of the county court of Lincoln County, relating to the attempted formation of the Silex & Louisville Road District, under Sections 10611 to 10625c, Laws 1913, pages 677 to 695, together with the petition and notice in said matter, were offered in evidence.
The petition in the proceeding set out the boundaries of the proposed road district, stating that it included in the aggregate 11360 acres; set out a description of the several tracts of land included in it, with the name of the owner and the number of acres of each tract, and was signed in proper form by thirty-five or forty of such owners. The statutory notice, dated on the day the petition was filed, signed by the clerk of the county court, setting forth the same boundaries as stated in the petition with the same number of acres, 11360, was directed to the several parties named as landowners in the petition. Proof of the proper service of notice also was made.
The order of the county court incorporating the district was made May 17, 1915, being the first term following the filing of the petition and the publication of the notice. It recites, among other things, that the court finds the petition and notice were in due form and the notice duly served, "and that the court has duly acquired and has jurisdiction of the subject-matter of this cause and of all the persons interested therein, and of all the lands located within the boundary of said district." The order then recites:
"The court further finds from the evidences adduced that the public good requires and makes necessary that the boundaries of the said proposed district as set out in the petition and notice should be changed, but that such changes in the boundaries proposed shall not be so as to embrace any land not included in the notice given by the clerk of this court; that after such changes in the boundaries are made, the court further finds that such petition is signed and in writing consented to by the owners of more than a majority of all the acres of land within the district as so changed, and that said district and the boundaries thereof as changed are in all respects suitable and proper, and that said district ought and should properly be incorporated and established by the name, and with the boundaries so changed as aforesaid."
Then follows a description of the land included within the boundaries of the district as changed, leaving out a large part of the land included within the boundaries set out in the petition and notice. The land left out in the order is stated by the appellant to be two thousand acres; the respondents claim it is only one thousand two hundred and twenty acres. However, it is unquestioned that it is a large tract, some of it contiguous to the proposed road marked on the plat submitted to the court showing the boundaries of the district and the direction of a road in contemplation from Silex to Louisville.
The record does not show that a remonstrance was filed to the petition nor that the petition was amended so as to conform to the territory embodied in the district covered by the order. Recitals in the order indicate that no remonstrance was filed and the petition was not amended. It does not appear by the record thus introduced nor by other evidence that the parties, the relators, or any of them, were present at the time of the hearing of the matter before the county court, or that there was any hearing other than the consideration of the petition and notice. The authority for the order as shown in its recitals is based upon the petition and the notice in the form in which they were filed and served, as above set forth. The circuit court decided the district was properly incorporated and dismissed the information. From that judgment relators appeal.
I. It is claimed by the relators in this case that the county court was without jurisdiction to incorporate the district with the boundaries changed from those stated in the petition and notice, so as to exclude a large part of the land in contemplation by the petitioners for the formation of the district in the first place.
The statute under which the proceeding was had, Section 10612, Laws 1913, page 678, requires that a petition signed by the owners of a majority of the acres of land within the district proposed to be...
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