State v. Bugg

• Decision Date: 21 December 1909
• Citation: 123 S.W. 827
• Parties: STATE ex rel. MARSHALL et al. v. BUGG et al.
• Court: Missouri Supreme Court

123 S.W. 827

STATE ex rel. MARSHALL et al. v. BUGG et al.

Supreme Court of Missouri.

December 21, 1909.

1. DRAINS (§ 50) — ESTABLISHMENT — CONSTRUCTION OF STATUTE.

Rev. St. 1899, § 8278, as amended by Laws 1905, p. 180 (Ann. St. 1906, p. 3916), gives the county court power, at any regular session, to cause to be constructed, straightened, widened, altered, or deepened any drain, etc., within the county, when it is necessary to drain any lands, and such draining would be conducive to the public health, convenience, or welfare, or would be a public utility or benefit, and provides that the petition for any such improvement shall be held to include any work necessary to secure fully the object of the improvement petitioned for, whether mentioned in the petition or not. Section 8279 provides that, before any county court shall establish any drain, etc., as provided for in the article, there shall be filed with the clerk of the county court a petition signed by a certain number of landowners. Held, that section 8279 contemplates that a proceeding to have a ditch or drain, already constructed, altered or deepened will be of the same nature and character, and under the same section, as is contemplated where it is sought, for the first time, to construct a drainage ditch, so that the petition therefor is the one provided for by section 8279.

2. DRAINS (§ 50) — PROCEEDINGS — NOTICE.

It appearing that in such a proceeding notice was given as required by Rev. St. 1899, § 8287 (Ann. St. 1906, p. 3920), to every person who might be in any way interested in the hearing of the report of viewers, showing all lands that would be benefited, damaged, or condemned by the improvement, and the damage or benefit to each tract of 40 acres or less, and showing by separate estimates the cost of location and construction, and apportioning the same, as provided by section 8284, the court had jurisdiction of the persons interested in the proceeding.

3. DRAINS (§ 14) — ALTERING DRAIN ALREADY CONSTRUCTED.

Under the statute, the county court, for the purpose of altering, deepening, or widening ditches previously constructed, and which comprised a drainage district, could organize another drainage district out of the same territory embraced in the former one, if sufficient reason existed; the question of the public utility of such second drain, as well as the question whether the landowners would be benefited by it, or should be assessed for its construction, being questions of fact for determination by the court.

4. DRAINS (§ 2) — ESTABLISHMENT — CONSTRUCTION OF STATUTE.

The statute, being intended to subserve a great public purpose, conducive to the public health, convenience, and welfare should not be confined by technical construction within an extremely narrow compass, but should be construed so as to be in harmony with the legislative intent, and to facilitate its accomplishment.

5. CONSTITUTIONAL LAW (§ 289) — DUE PROCESS OF LAW.

Rev. St. 1899, c. 122, art. 4, as amended by Laws 1905, p. 180 (Ann. St. 1906, pp. 3915-3935), relating to drainage of swamp and overflow lands, is not violative of U. S. Const. Amend. 14, and Const. art. 2, § 30 (Ann. St. 1906, p. 166), providing that no person shall be deprived of property without due process of law; section 8287 thereof providing for notice of the proceedings in the name of the state, to be directed by name to every person returned by the engineer and viewers as owner of land affected, or of any interest therein, and notice to all others whom it may have in any manner ascertained own such land or any interest therein, which shall be published in four issues of a weekly newspaper published in the county, constituting due process of law.

In Banc. Mandamus by the State, on the relation of John E. Marshall and others, against William H. Bugg and others. Peremptory writ ordered.

This is an original proceeding by mandamus, instituted by relators in this court to compel the respondents, William H. Bugg and James McPheeters, who are, respectively, presiding judge and clerk of the county court of Scott county, Mo., to sign and attest bonds of Scott county, Mo., to the amount of $100,000, which were, by the county court of Scott county, Mo., on the 16th day of December, 1907, ordered issued to pay for the construction of a system of ditches and levees in what is known as "Drainage District No. 4" of Scott county, Mo. We do not deem it essential to reproduce in full the petition presented to this court for the relief sought, as heretofore indicated, but it will be sufficient to briefly state, in substance, what such petition contains.

This proceeding is predicated upon the provisions of article 4, c. 122, Rev. St. 1899, and the amendments adopted in 1905 (Sess. Acts of 1905, p. 180 [Ann. St. 1906, pp. 3915-3935]). These laws, to which reference is made, fully provide for the organization of drainage districts by the county courts of the respective counties in which the lands are situate, to which the drainage district has application.

Section 8278, Laws 1905, provides: "The county court of any county in the state of Missouri shall have power at any regular session thereof, when the same shall be conducive to the public health, convenience or welfare, or where the same will be of public utility or benefit, to cause to be constructed, straightened, widened, altered or deepened, and ditch, drain, natural stream, not navigable, or water course, within said county, when the same is necessary to drain any lots, lands, public or corporate roads, or railroads. The word `ditch' as used in this article shall be held to include a drain, water course or levee hereafter constructed. The petition for any such improvement shall be held to include any side, lateral, spur or branch, ditch, drain, water course or levee, the lowering of any lake or any other work necessary to secure fully the object of the improvement petitioned for, whether the same is mentioned in such petition or not."

Sections 8279 and 8280, Laws of 1905, provide for the preliminary steps necessary to be taken for the organization of the drainage district improvement which may be sought to be made. Those sections provide:

"Before any county court shall establish any ditch, drain, water course, or levee improvement, as provided for in this article, there shall be filed, with the clerk of the county court of such county, a petition signed by one or more landowners if the improvement be less than five miles in length, and if it be more than five miles in length, by five or more landowners, whose lands will be liable to be affected by or assessed for the construction of the same, setting forth the necessity therefor, with a general description of the proposed ditch or other improvement, the starting point, route and terminus thereof, and whether it is desired to issue bonds. There shall be filed, with such petition, a bond in the sum of not less than fifty dollars per mile, payable to the state of Missouri, signed by one or more of the petitioners, and two or more good and sufficient freehold sureties, to be approved by the county court, conditioned for the payment of all costs and expenses if the prayer of the petition be not granted or the petition from any cause dismissed."

Section 8280:

"When such petition is filed and such bona approved, the county court shall, if in regular session, or at a called session, appoint three resident freeholders of said county, not interested in the construction of said work and not of kin to any person interested therein, as viewers or commissioners, and also a competent civil engineer, to assist them, who shall proceed at once under the direction of an order of said court made therein, certified by the clerk thereof, to view the line of the proposed ditch or improvement and report by actual view of the premises, along and adjacent thereto, whethed the proposed improvement is necessary, practicable and would be of public utility or conducive to the public health, convenience or welfare, and if they find that the proposed improvement is necessary, practicable and would be of public utility or conducive to the public health, convenience or welfare, then they shall also report the best route for the proposed drain whether any portion of the same should be covered, and whether the work of constructing the same should be by allotment to the several interests, or be let by contract without allotment. They shall report their finding, in writing, to the county court at a time fixed by said court, or, if no time be fixed, at the next regular term thereof, and the court shall cause the same to be entered on its records. All viewers and engineers, before entering upon the discharge of their duties as such, shall take and subscribe an oath to faithfully and impartially discharge their duties as such viewers and engineer, and to make, to the county court, a true and correct report of the work done by them."

The petition presented to the county court, it is alleged in the petition upon this application, fully conforms to the requirements of the sections of the statute herein indicated.

Section 8281, on the subject of drainage districts, makes provision that after the report of the viewers, appointed under the provisions of section 8280, is filed, a time should be fixed by the county court for a hearing upon the petition and report of the viewers, and for the giving of notice of such hearing.

Section 8282, treating of this same subject, substantially provides that if, at the hearing provided for, as above stated, the county court shall find against the improvement, it shall dismiss the petition and the proceedings at the cost of the petitioners, and section 8283 provides, that if the court shall find in favor of making the improvement, the land which will be thereby benefited shall constitute a drainage district, which shall be designated by number.

Section 8284 provides, that if the county court shall...