State v. Blair

• Decision Date: 02 July 1912
• Citation: 151 S.W. 148,245 Mo. 680
• Parties: STATE ex rel. COLEMAN, County Treasurer, v. BLAIR et al.
• Court: Missouri Supreme Court

151 S.W. 148

245 Mo. 680

STATE ex rel. COLEMAN, County Treasurer, v. BLAIR et al.

Supreme Court of Missouri.

July 2, 1912.

Rehearing Denied November 14, 1912.

1. DRAINS (§ 14) — ORGANIZATION OF DISTRICTS — COLLATERAL ATTACK.

The legality of the organization of a drainage district cannot be collaterally attacked in an action to collect drainage taxes.

2. DRAINS (§ 14) — INCORPORATION OF DISTRICT — NOTICE TO OWNERS.

Rev. St. 1909, § 5587, providing a notice to landowners of the application to incorporate a drainage district shall be published in four issues of some weekly paper, the last insertion to be before the day set for hearing, does not require the last publication of a notice to be on the last day before the day set for hearing.

3. CONSTITUTIONAL LAW (§ 290) — DRAINS (§ 76) — DUE PROCESS OF LAW — HEARING IN DRAINAGE PROCEEDINGS — TIME.

Rev. St. 1909, § 5587, requires notice to landowners of an application to incorporate a drainage district to be published in four issues of a weekly paper; the last insertion to be before the day set for hearing. The hearing of objections by landowners of assessment of benefits was set for March 20, 1906, and notice of hearing was published on February 16th, March 2d, 9th, and 16th. A certain landowner resided in the state of New Jersey, and the time required to travel from New Jersey to Bates county, Mo., where the land is situated, was 36 hours. The clerk or judge of the county court knew where such defendant lived. Held, that it could not be said that the notice required was not notice at all until its publication the fourth time, or that the publication of the notice was for so short a time as to constitute the taking of the property without due process of law.

4. NOTICE (§ 11) — SUFFICIENCY OF PUBLICATION.

As a rule, when the law requires a notice to be published for a certain number of days before legal proceedings are had, it is sufficient if the last publication occur before such proceedings are had.

5. COURTS (§ 93) — RULE OF DECISION.

The Supreme Court is not bound to follow its prior decisions if they be erroneous, though it usually follows them when to do otherwise would disturb a large number of titles.

6. DRAINS (§ 76) — ESTABLISHMENT — NOTICE TO PROPERTY OWNERS.

Rev. St. 1909, § 5584, provides for the appointment of a surveyor and three viewers to survey and estimate the expense of draining lands and assess the benefits, and that the viewers shall state in their report the name of the owners of each tract "so far as they are by diligent effort able to ascertain the same," and section 5587 provides that the clerk shall fix a time for hearing objections to the assessment of benefits, and thereupon issue a notice directed by name to every person returned by the engineer and viewers as the owner of every lot affected, and issue like notice by name to all persons "whom it may in any manner be ascertained" own any interest in the land, as well as notice generally to all persons owning such lands, without mentioning their names. Held, that the statutes do not require the viewers to go to the record of deeds to ascertain who owns the lands against which they have assessed benefits.

7. DRAINS (§ 76) — COLLECTION OF ASSESSMENTS — SUFFICIENCY OF NOTICE.

Since the drainage law does not require the same kind of notice as in ordinary suits to collect back taxes, the sufficiency of the notice of hearing of objections to the assessment of benefits in drainage proceedings must be governed by the provisions of the drainage law.

8. STATUTES (§ 227) — CONSTRUCTION — MANDATORY STATUTES — "MAY."

The word "may," when used in a statute, is sometimes construed as mandatory, but more frequently as directory.

9. DRAINS (§ 76) — ESTABLISHMENT OF DISTRICT — PUBLICATION OF NOTICE.

The fact that an order of the county court, directing notice of the assessment of drainage benefits, directed the clerk to insert the notice in the "Western Enterprise," when it was in fact inserted in the "Rich Hill Enterprise," was not a fatal variance so as to invalidate the notice, where the evidence showed that there was only one paper in the city, which was sometimes designated by the one name and sometimes by the other.

10. DRAINS (§ 76) — CONSTITUTIONAL LAW (§ 290) — NOTICE — PERSONS ENTITLED.

A notice of drainage proceedings addressed to "the estate of B., B.'s heirs," etc., was not objectionable as not being due process of law because B.'s will investing his heirs with title to the land sought to be assessed was on record showing the name of the heir taking the estate.

11. DRAINS (§ 76) — OBJECTIONS TO ASSESSMENT — TIME OF HEARING — "REGULAR SESSION" — "REGULAR MEETING" — "REGULAR TERM."

Under Rev. St. 1909, § 5615, providing that the terms "regular session" and "regular meeting" of the county court, as used in the article, shall include the regular sessions of such court commencing on the first Monday in February, etc., as well as any adjourned term provided for by the court when in session, fixing the date of hearing objections to an assessment of benefits at an adjourned session of the county court was sufficient within Rev. St. 1909, § 5587, contained in the same chapter and article, requiring such date to be fixed at "the next regular term" of the county court.

12. STATUTES (§ 185) — CONSTRUCTION.

Whatever is implied is as much a part of a statute as though expressly inserted therein.

13. NOTICE (§ 9) — TIME RETURNABLE.

If the law fixes a definite date on which a notice is returnable, it cannot be returned on a different date.

14. PROCESS (§ 70) — SERVICE — CONSTRUCTIVE SERVICE.

Statutes giving jurisdiction by constructive service must be strictly construed.

In Banc. Appeal from Circuit Court, Vernon County; B. G. Thurman, Judge.

Suit by the State, on the relation of S. L. Coleman, Treasurer and ex officio Collector of Revenue of Bates County, against De Witt C. Blair and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Civil action in the circuit court of Bates county to collect drainage taxes in the sum of $2,659.20. Plaintiff had judgment below, and defendants appeal.

Plaintiff's petition alleges the organization of drainage district No. 1 in Bates county, Mo., by the county court of that county on February 7, 1906, under the provisions of article 4, chapter 122, R. S. 1899 (now article 4, chapter 41, R. S. 1909). The taxes sued for were levied by the county court in the year 1907, to pay bonds issued and sold to raise money to drain overflowed lands of defendants and other persons situated within said drainage district. These taxes remained unpaid on November 1, 1908, and this suit is to enforce the lien of said taxes against the lands of defendants. Defendant De Witt C. Blair filed a separate answer asserting ownership in himself of the lands described in plaintiff's petition, and denying generally all other allegations therein. The other defendants filed no pleadings and made no defense. For the purpose of this opinion, Blair will be hereafter treated as the sole defendant. The delinquent drainage tax bills upon which plaintiff's suit is based were introduced in evidence. Whereupon, to overcome the prima facie case thus made by plaintiff, defendant assailed the incorporation of the drainage district, and attempted to prove the invalidity of the tax bills by introducing the records of the county court and the petition, reports, notices, and other proceedings which resulted in the organization of said drainage district and the assessment of benefits against his lands.

John H. Lucas, of Kansas City, and Harvey Clark, of Nevada, Mo., for appellants. T. J. Smith and J. F. Smith, both of Butler, for respondent.

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

I. The defendant contends that the judgment of the county court organizing and incorporating the drainage district is void because: (1) Only two of the three viewers, appointed by the court to examine the lands sought to be drained, reported in favor of the necessity, utility, and practicability of the proposition, while the third viewer made an adverse report on said proposition; and, (2) section 5581, R. S. 1909, is unconstitutional, in that the notice therein prescribed is not due process of law. Defendant also asserts that the notice issued under said last-named section was irregular and insufficient in both form and substance.

Neither of the issues thus tendered can avail defendant in this action, because a drainage district is a public corporation, and the legality of its organization and the sufficiency of its corporate existence cannot be inquired into in this collateral action. State v. Fuller, 96 Mo. 165, 9 S. W. 583; Catholic Church v. Tobbein, 82 Mo. 418; Burnham v. Rogers, 167 Mo. 17, 66 S. W. 970; School District v. Hodgin, 180 Mo. 70, 79 S. W. 148.

II. It is further contended that the length of time prescribed by section 5587, R. S. 1909, for the publication of notice to landowners of the date when they may be heard on the question of benefits assessed against their lands for the drainage of same, is so short as to constitute the taking of property without due process of law, as prohibited by section 30, article 2, Constitution of Missouri, and section 1, fourteenth amendment to the Constitution of the United States.

Section 5587, supra, provides that notice to landowners of the application to incorporate a drainage district "shall be published in four issues of some weekly newspaper published in the county, the last insertion to be before the day set for hearing." From the phraseology of the statute quoted, it is evident that the last publication of the notice need not be on the last day before the day set for the hearing. Statutes of practically the same purport have been construed by this court to be complied with when the last insertion of the notice occurred 10 days before the cause was set for hearing. Robbins v. Boulware, 190 Mo. 33, 88 S. W. 674, 109 Am. St....