State ex rel. Clarke v. West

• Decision Date: 01 December 1917
• Citation: 198 S.W. 1111,272 Mo. 304
• Parties: THE STATE ex rel. E. R. CLARK et al. v. C. S. WEST et al
• Court: Missouri Supreme Court

198 S.W. 1111

272 Mo. 304

THE STATE ex rel. E. R. CLARK et al. v. C. S. WEST et al

Supreme Court of Missouri

December 1, 1917

Writ denied.

N. M Bradley and W. D. Summers for relators.

(1) Section 5883, as amended, says: "If the court finds that the owners of a majority in acreage of the proposed district are petitioners, or have joined in prayer of said petition for said district or improvement, by motion, then the court shall . . . find in favor of making the improvement." Reagan v. County Court, 226 Mo. 79. (2) Mandamus is the proper remedy in this case. State ex rel. v Cramer, 96 Mo. 84; State ex rel. v. Public School, 134 Mo. 307; 26 Cyc. 162; State ex rel. v Brown, 172 Mo. 374; State ex rel. v. Buhler, 90 Mo. 560; State ex rel. v. Phillips, 97 Mo. 331. "It has been said that it would be a monstrous absurdity in a well-organized government that there should be no remedy, although there should appear a clear and undeniable right." State ex rel. v. County Court, 48 Mo 475; Sheridan v. Fleming, 93 Mo. 321; State ex rel. v. County Court, 41 Mo. 225; In re Dunklin County v. Distr. Co., 23 Mo. 449; State ex rel. v. McCracken, 60 Mo.App. 651. "Ever since the 12 Mo. 166, mandamus has been regarded as the proper proceeding to compel recalcitrant county courts to do their duty." State ex rel. v. Fraker, 166 Mo. 140; citing Riley v. City, 31 Mo.App. 439. "Hearing evidence does not convert the matter into a judicial inquiry." State ex rel. v. Guinote, 113 Mo.App. 407; State ex rel. v. Reynolds, 121 Mo.App. 699. The county court can be required by mandamus to do their duty. State ex rel. v. Butler County Ct., 164 Mo. 214; State ex rel. v. Patterson, 207 Mo. 129. Section 5583, withholds the right to remonstrate, if a majority sign the petition, and makes it mandatory that the county court incorporate the ditch. Laws 1913, p. 271. "A formal finding or declaration of the necessity of improvements is not necessary, unless the statute specifically requires the same." 2 Page & Jones on Taxation, secs. 803, 832; Joplin v. Freeman, 125 Mo.App. 717; State ex rel. v. Grim, 220 Mo. 489; State ex rel. v. Bidwell, 136 Mo.App. 503; State ex rel. v. Keeze, 40 Mo.App. 650. (3) The constitutionality of a law is never presumed and it must be shown clearly to be unconstitutional. State ex rel. v. Pike County, 144 Mo. 275. General allegation that a statute is unconstitutional does not raise the issue. The provision of the Constitution violated must be pointed out. Ash v. Independence, 169 Mo. 77; State ex rel. v. Smith, 176 Mo. 44. (4) The respondents, not being personally interested and their rights not being affected, cannot raise or urge the question of the constitutionality of the statute. The demurrer admits that the question was not raised by the objectors in the county court, and the respondents cannot urge the same for them here. 25 Am. & Eng. Ann. Cases, 151; State ex rel. v. Williams, 232 Mo. 56.

J. R. Nicholson, A. A. Whitsitt, J. S. Brierly and T. N. Haynes for respondents.

(1) Before the county court had the power to incorporate the proposed drainage district it was necessary that they should hear evidence in addition to the report of viewers, as to whether or not the proposed improvements were necessary and conducive to the public health, convenience or welfare, or would be of public utility and benefit. R. S. 1909, sec. 5578. (A) In order that the court might be correctly informed to pass upon the questions and matters necessarily required by section 5578 to give the court jurisdiction and power to act and incorporate, the statute provides that the court shall appoint viewers and an engineer who shall report their findings in writing, with such maps, profiles and drawings as are necessary to advise the court, and that after the report of viewers is filed the court shall hear and determine the petition, the report of viewers and the grievances set forth in the remonstrance. Secs. 5583 and 5584, Laws 1913, p. 271. (B) The report of viewers is advisory only as to the matters set forth in their report, and is not binding upon the court. State ex rel. v. Taylor, 224 Mo. 475; Drainage Dist. v. Railroad, 236 Mo. 107. (C) In the county court proceedings it was incumbent upon relators to satisfy respondents, sitting as such county court, as to the practicability of the proposed improvements, and whether or not such proposed improvements were necessary and conducive to the public health, convenience or welfare, or would be of public utility and benefit; to do this it was necessary that respondents, sitting as such county court, hear evidence as to the questions of fact at issue; and repondents, having heard the evidence and made a finding, as alleged in relators' petition, their acts in so doing were judicial, and whether the conclusions arrived at were right or wrong, they are not subject to review by mandamus. Heman v. Flad, 108 Mo. 614; State ex rel. v. Broaddus, 209 Mo. 107; State ex rel. v. Hudson, 226 Mo. 239; State ex rel. v. Gentry, 112 Mo.App. 589; State ex rel. v. Oliver, 116 Mo. 188; State ex rel. v. Thornhill, 174 Mo.App. 469; High on Extraordinary Remedies, 230, 102; 18 Ruling Case Law, p. 124, sec. 38; State ex rel. v. Johnson, 266 Mo. 662; State ex rel. v. Jones, 155 Mo. 576; 26 Cyc. 158-161; In re Drainage Dist., 90 Wis. 301; Fleming v. Hall, 73 Iowa 592. (2) If, as contended by relators, the word "shall" as used in Sec. 5583, R. S. 1909, as amended by Laws 1913, p. 272, be construed to make it mandatory upon the county court to grant the prayer of the petition and incorporate the drainage district upon a finding by the court that the majority of owners in acreage are petitioners, or join in the prayer of the petition, regardless of a finding by the court as to whether or not the proposed improvement shall be conducive to the public health, convenience or welfare, or where the same will be of public utility or benefit, and necessary to drain any lots, lands, public or corporate roads or railroads, as required by section 5578, then said act attempts to usurp the judicial functions of the courts, and is null and void, because violative of the provisions of both the Federal and State Constitutions. U. S. Constitution, sec. 1, art. 14, second subdivision of article 6, and secs. 1 and 2, art. 3; Mo. Constitution, sec. 20, art. 2, section 30 of article 2, subdivisions 17 and 33 of section 53 of article 4, and section 1 of article 6; Savannah v. Hancock, 91 Mo. 54; Mining Co. v. Joplin, 124 Mo. 129; Aldridge v. Spears, 101 Mo. 400; Mills on Em. Domain, sec. 11; Lewis, Eminent Domain, sec. 238; 10 R. C. L., p. 18, sec. 15, page 30, sec. 27; 15 Cyc. 580; Cooley on Constitutional Lim. (7 Ed.), pp. 132, 244; 9 R. C. L., p. 623-4, secs. 8 and 9; 6 R. C. L., pp. 453, 456.

FARIS, J. Graves, C. J., Bond, Walker, Blair and Williams, JJ., concur; Woodson, J., dubitante.

OPINION

In Banc.

Mandamus.

FARIS J.

This is an original proceeding by mandamus, whereby relators seek to compel respondents, as judges of the County Court of Cass County, to make an order organizing certain lands of relators and others situate in Cass County into a drainage district, under the provisions of article 4, chapter 41, Revised Statutes 1909, as amended by an act approved March 27, 1913. [Laws 1913, pp. 271-281.] This is the County Court Act, so-called to distinguish it from a similar but procedurally different proceeding whereof the jurisdiction lies in the circuit courts.

Upon the issuance of our alternative writ respondents demurred, thus in effect confessing, for the purpose of this inquiry, the truth of all allegations contained therein. The facts in the case are therefore to be found in the alternative writ. This writ is lengthy and since no point is made touching its form, we may more briefly state the facts by epitomizing it and making excerpts from it. Reached in this way, the facts run thus: Petitioners are the owners of certain swamp and overflowed lands situate on and along Big Creek, in Cass County, Missouri; desiring to ditch and drain said lands, and having in contemplation the construction of ditches and improvements more than five miles in length, petitioners to the number of more than five, being the owners of a majority in acreage of the lands in the proposed district, filed with respondents, as members of the County Court of Cass County, a petition with the necessary allegations touching the nature of the proposed improvements and the route and termini of the same. They likewise filed a proper bond, which was approved by respondents. Respondents thereupon, as such court, appointed three disinterested freeholders, and an engineer, who properly qualified and proceeded to view the lands proposed to be embraced in the district. Said viewers and engineer found, and so reported to the respondents, that the proposed improvement was necessary, practicable, and would be of public utility, and conducive to the public health, convenience and welfare. The viewers and engineer also indicated in and by their report the character, dimensions, location and probable cost of the drainage necessary to accomplish the objects of the petition.

After the filing of the report of the viewers and engineer respondents made the proper orders of record, and caused a proper notice to be given by publication in a newspaper of the pendency of said petition, together with such other facts as are required in that behalf by the statute, and fixed a day at which the petition and the report of the viewers would be heard. Upon the day so fixed for the hearing of the petition "a remonstrance was filed by persons interested in land that would be affected by said proposed ditch and improvement, in which said remonstrance it was admitted that the proposed improvement contained swamp...