State ex rel. Roberts v. Eicher

• Decision Date: 30 June 1915
• Docket Number: 17414
• Citation: 178 S.W. 171
• Parties: STATE EX REL. ROBERTS v. EICHER.
• Court: Missouri Supreme Court

178 S.W. 171

STATE EX REL. ROBERTS v. EICHER.

No. 17414

Supreme Court of Missouri, First Division

June 30, 1915

Appeal from Circuit Court, Livingston County; William C. Ellison Special Judge.

Action by the State, on relation of Dolph Roberts, against H. M Eicher. Judgment for plaintiff, and defendant appeals. Affirmed.

This suit was brought in the circuit court of Livingston county by the plaintiff against the defendant to enforce the lien of certain special tax bills issued by drainage district No. 4 duly incorporated by the county court of that county, under article 4 of the Laws of 1905, pp. 180 to 190, now article 4 of chapter 41, R. S. 1909, consisting of sections 5578 to 5635, both inclusive. Our learned colaborer, Judge Wm. C. Ellison, of the Fourth circuit, was called in to try the cause, which the record shows he did with great care and consideration, resulting in a judgment for the plaintiff, and the defendant duly appealed the cause to this court. All of the proper preliminary steps required by the statute were taken, except as will be presently noted, and the ditches were dug and levees constructed according to the contract and plans and specifications made and entered into by and between the parties. After the completion of the work, bonds were issued in payment thereof, and tax bills were issued against the lands embraced in the district benefited by the improvements for the purpose of securing the payment of the bonds, etc. It should be borne in mind that at the time of the incorporation of the district and the performance of the work under the contract of drainage the defendant did not own the land against which the lien is sought to be enforced, but acquired title thereto subsequent to that time.

Counsel for appellant have so clearly and tersely stated what they conceive the facts of the case to be upon which they seek a reversal of the judgment, it will be unnecessary to add anything thereto in the presentation and discussion of the legal propositions presented by them for determination; but, wherever the correctness of the statement of any of the facts made by appellant is challenged by respondent, the facts of the case, as disclosed by the record, will be stated by the court. And, should any additional facts disclosed by the record become necessary to be mentioned for a clear presentation of respondent’s case, I will note them in connection with the propositions to which they relate. By this mode of procedure nothing but the disputed facts and litigated questions will incumber this statement of the case; all other parts of the records of the county court and those of the drainage district being either expressly or by necessary implication conceded to be legal and valid.

Counsel for appellant state the facts and their position in the following language:

"According to the record and testimony, H. M. Eicher, the appellant, is the owner of the north half of section 29, the northeast quarter of the southeast quarter of section 29, and the west half of northwest quarter of section 28, all in township 57, range 22, Livingston county, Mo. The record also shows that the ditch constructed by the tax sought to be collected runs through the east half of said section 29 near the east line of said section. The record also shows that no notice of any character was ever given to any one that any land in said section 29 would be or was condemned, or that it would be appropriated to the public use for the right of way of the ditch, or that it ever was condemned or acquired in any other way. In this action the respondent seeks the most remarkable thing, namely, the taxing of the land taken from Eicher, which of necessity must be at least nine acres, and which was appropriated to the use of the public without any process of law, and are asking the Supreme Court of the state of Missouri to confirm an order to sell the rest of the land owned by the defendant to pay this tax.

The testimony shows that the first viewers appointed by the court advised the construction of a ditch in harmony with the petition filed, beginning at a certain point running through said section 29 and ending in Grand river. The second viewers appointed by the court in their report advised and recommended a ditch commencing at same point that the one did which was advised by the first viewers passing through said section 29 near the east line, and ending at a point falling short 180 rods of the one advised by the first viewers, and approved by the court. The testimony and records show that nothing more was done and no further steps were taken by county court relative to the ditch recommended by the second viewers. The ditch advised and recommended by the first viewers was advertised to be let, and was let by public outcry, contract entered into for its construction, and bonds issued, advertised, and sold for its construction. The ditch advised by the second viewers never was advertised to be let, or let, no contract entered into for its construction, and no bonds issued or sold for its construction. The land, if taxed at all, was taxed in 40, 50, 80, 120, and 160 acre tracts of 40-acre tracts or less."

Arthand & Arthand, of Chillicothe, for appellant.

E. C. Kaburick, of Hillsboro, Ill., and Jas. E. Watkins, of Chillicothe, for respondent.

OPINION

WOODSON, J. (after stating the facts as above).

I. It is first insisted by counsel for appellant that the judgment of the circuit court holding the special tax bills sued on valid should be reversed, for the reason that the record of the proceedings had in the county court regarding the incorporation of the drainage district in question fails to show that the owners of the land embraced in the district were properly served with notice that the district was to be established, or that they were given an opportunity to be heard in the premises, as provided for by sections 5581 and 5587, R. S. 1909. These sections provide for two notices, and the manner of their service. The first regards what is known as the preliminary and the second the final notice. The first is not really intended to bring the landowners into court, but to notify all persons who might be interested in the proposed scheme of drainage to appear at the time and place named for the purpose of counciling and advising among each other and with the county court regarding the advisability, feasibility, and wisdom of carrying the proposed scheme into execution along the lines proposed by the preliminary steps previously taken under the authority of sections 5579 and 5580, R. S. 1909. State ex rel. v. Taylor, 224 Mo. 393, loc. cit. 462, 123 S.W. 892. The final notice, the one required to be given by said section 5587, is the statute which provides for the giving of the notice required by the due process provisions of the state and federal Constitutions. Construction Co. v. Shovel Co., 211 Mo. 532, 111 S.W. 86; Prior v. Construction Co., 170 Mo. 439, 440, 71 S.W. 205; Drainage District v. Campbell, 154 Mo. 151, 55 S.W. 276; St. Joseph v. Truckenmiller, 183 Mo. 15, 81 S.W. 1116; City of St. Louis v. Ranken, 96 Mo. 509, 9 S.W. 910; Eyssell v. St. Louis, 168 Mo. 607, 68 S.W. 893. These notices are quite lengthy, but, after a careful reading and a comparison with said statutes, we find they conform to every requirement thereof.

The first or preliminary notice to landowners is only a general notice, and which was in every respect in conformation to the provisions of the statement. It contains a general statement of the nature and object of the petition filed, the place of beginning, route, and terminus of the ditch, the appointment and report of the viewers and engineer, and the date fixed by the court for the hearing of the petition and report of the viewers and engineers thereon, as provided for by said sections 5579 and 5580....