State v. Armstrong

• Decision Date: 03 July 1926
• Docket Number: No. 27322.,27322.
• Citation: 286 S.W. 705
• Parties: STATE ex Inf. GENTRY, Atty. Gen., v. ARMSTRONG et al., Supervisors, etc.
• Court: Missouri Supreme Court

286 S.W. 705

STATE ex Inf. GENTRY, Atty. Gen., v. ARMSTRONG et al., Supervisors, etc.

No. 27322.

Supreme Court of Missouri, in Banc.

July 3, 1926.

Original proceeding in quo warranto by State of Missouri upon the information of North T. Gentry, Attorney General, against Fred L. Armstrong and others, Supervisors of the Northwest Maplewood Sewer District of St. Louis County. Writ of ouster allowed.

North T. Gentry, Atty. Gen., and George W. Crowder, Asst. Atty. Gen., for relator.

Charles & Rutherford and L. A. Prichard, all of St. Louis, Martin J. Rasmussen, of Clayton, Greensfelder, Dyott & Grand, of St. Louis, Jesse L. Harnage, of Clayton, Arthur V. Lashly, of St. Louis, C. G. Baxter, of Clayton, J. H. Haley, of Bowling Green, and Richard F. Ralph, of Clayton, for respondents.

Seneca C. Taylor, of St. Louis, Wm. J. Kieley, of Jefferson City, E. L. Rothgranger and Robert C. Powell, both of St. Louis, amid curiae.

Nagel & Kirby and E. G. Curtis, all of St. Louis, for School District of Webster Groves.

Robert A. Roessell, of Webster Groves, for City of Webster Groves.

GRAVES, J.

This suit started (as indicated by the statement of the learned Attorney General) as a friendly suit to test the validity of an act of the General Assembly for the year 1925, relative to the establishment and maintenance of sewer districts. During the friendly period of the suit, the Attorney General's office represented the state in an attack on the invalidity of the said act of 1925. The law (Act of 1925) provided for the organization and maintenance of sewer districts, as drainage districts are organized under what we call the Circuit Court Act (Laws 1913, p. 232). The sewer act will be found in the Laws of 1925; at page 343 et seq.

Distinguished counsel for prospective bond purchasers represented the other side of the controversy. This is to say, they suggest reasons for upholding the act. One of such argued the case here in connection with counsel for special communities in St. Louis county.

Friendliness, however, was not long to continue in the suit. Dissatisfied taxpayers rushed to the assistance of the Attorney General in his attack upon the law, and interested parties and communities (all as amici curie) rushed to the assistance of the counsel for prospective purchasers of bonds. So, what appeared to be friendly at first, has turned out to be a real contest. We do not mean to say that the learned Attorney General did not (in the first instance) fully suggest all the troublesome questions occasioned by this law (for he did) but subsequent briefs by friends of the court (upon both sides) have tended to add spice to the contest. It is frankly conceded that the act of 1925 applies to no county in the state, save and except St. Louis county. The wording is peculiar in some respects. The act consists of 40 sections, and is, and was passed as a general law. Laws of 1925, pp. 343 to 367. The enacting clause reads:

"An act to provide for the incorporation and organization of sewer districts in any county joining a city now or hereafter having a population of seven hundred thousand or more, defining the powers of such corporations, providing for the ascertainment of assessments and damages to the lands and other property in such districts, the designing and adoption of sewer plans in such districts and for the issuance of bonds and the levying of taxes by such districts."

The italics are ours. The most material, portions of the law are sections 1-6 of the law, which sections read:

"Section 1. Sewer Districts — When and Where Organized. — That whenever any area of contiguous territory within the limits of any county adjoining a city now or hereafter having a population of seven hundred thousand (700,000) inhabitants or more is or shall be in need of a system of sewers for sanitary purposes or for the protection of the public health or welfare, a sewer district may be created and organized as herein provided, and such district may be located wholly or partly within the corporate limits of any city, town, or village in such county, or wholly outside of such city, town or village.

"Sec. 2. Freeholders May Pray for Letters of Incorporation — Petition, Where Filed. — Any one hundred or more adult owners of real estate resident within the limits of such proposed sewer district may file, in the office of the clerk of the circuit" court of such county, a petition ex parte in which shall be set forth the boundary lines of the proposed district, the name under and by which it shall be known and be incorporated, and the number of years it shall continue as a public municipal corporation; and the said petition shall contain a prayer that the lands and other property within such boundaries be declared a sewer district under the provisions of this act.

"Sec. 3. Publication of Proposed Organization — Form of Notice — When and How Made. — Immediately after such petition shall have been filed with the clerk of said court, the clerk shall give notice by causing publication to be made once a week for two consecutive weeks (that is, by two weekly insertions) in some newspaper published in such county, the first publication of said notice to be at least fourteen days prior to the day of the hearing on the said petition, and such notice shall be substantially in the following form, which shall be deemed sufficient for all purposes:

"`Notice of Application to Form Sewer District.

"`Notice is hereby given to all persons interested in the lands or other property within the limits hereinafter set out, located in the county of ____, state of Missouri, (here set out the boundary line of the proposed district) that a petition asking that the lands and other property lying within the territory above described be formed into a sewer district under the provisions of an act entitled ____ passed by the general assembly of the state of Missouri at its regular session of 1925, approved ____, 1925, and that the lands and other property in said proposed district will be affected by the formation of said sewer district and be rendered liable to taxation for the purpose of paying the expenses of organizing the district and of making and maintaining the improvements that may be found necessary to afford sewerage facilities and sewerage protection for the lands and other property in said district, and you and each of you are hereby notified to appear in the circuit court of said county on the ____ day of ____, 19__, at the courthouse in ____, in division ____ thereof, and show cause, if any there be, why said sewer district as set forth and described in this said petition should not be organized as a public municipal corporation of the state of Missouri.

6 Clerk of the Circuit Court,

" County, Missouri.'"

The time for the hearing, as indicated in the said notice, shall be such time as may previously have been designated by the court.

"Sec. 4. Who May Object to Organization — Court's Findings Certified by Clerk — Fees. — Any owner of real estate or other property in the said proposed district who may not have signed said petition, objecting to the organization or incorporation of said sewer district shall, on or before the day designated for the hearing on the petition, file his objection or objections to the incorporation of such sewer district, but such objection or objections shall be limited to a denial of the necessity or desirability for sewage disposal in the said district and shall be heard by the court in a summary manner without unnecessary delay, and in case all such objections are overruled the circuit court shall, by its order duly entered of record, declare and decree said sewer district a public municipal corporation of this state for a term not exceeding the time mentioned in the said petition. `If the court finds that the lands and other property in the territory described in the said petition should not be incorporated into a sewer district, it shall dismiss said proceedings and adjudge the cost against the signers of said petition. Any person having signed the petition shall have no right to have said proceedings dismissed as to him or withdraw his name therefrom without the written consent of the majority of the signers thereof. The petition may be amended as any other pleading. Within ten days after the said district shall have been decreed a corporation by the court, the clerk thereof shall transmit to the secretary of state a certified copy of the findings and decree of the court, and the same shall be filed in the office of the secretary of state. A copy of said findings and decree shall also be filed in the office of the recorder of deeds of said county, who shall receive a fee of one dollar for filing and preserving the same.

"Sec. 5. Board of Supervisors — Appointment — Qualifications — Oath — Term of Office — Vacancy, How Filled — Organization — Compensation — Must Keep Seal and Make Reports. — At the time of entering the decree of incorporation, or within fifteen days thereafter, the said court shall appoint a board of three supervisors to be composed of owners of lands or other property in the said district, who shall be residents of the state of Missouri. The said appointment shall be for one, two, and three years, respectively, and at the end of their terms the court shall appoint their successors for terms of four years each and until their successors in turn shall have been appointed and qualified. All vacancies in the said board of supervisors shall be filled by the court, and each supervisor shall, before entering upon his official duties, take and subscribe an oath before some officer authorized by law to administer oaths that he will honestly, faithfully and impartially perform the duties devolving upon him in office as supervisor of the sewer district for which he may have been appointed and that he will not neglect any of the duties imposed upon him by this act. Immediately after their appointment, the said board...