State v. Grand River Drainage Dist.
| Decision Date | 22 December 1925 |
| Docket Number | No. 25536.,25536. |
| Citation | 278 S.W. 388 |
| Parties | STATE ex rel. CHAMBERLIN, Pros. Atty., v. GRAND ROVER DRAINAGE DIST. OF CASS AND BATES COUNTIES. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Cass County; C. A. Calvird, Judge.
Proceeding for mandatory injunction by the State of Missouri, on the relation of G. R. Chamberlin, Prosecuting Attorney, against the Grand River Drainage District of Cass and Bates Counties. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
G. R. Chamberlin and A. A. Whitsitt, both of Harrisonville, and D. C. Chastain, of Butler, for appellant.
Allen Glenn & Son, of Harrisonville, and W. E. Owen, of Clinton, for respondent.
By this action Cass county seeks to compel defendant, a drainage district organized by decree of the circuit court of that county, to construct or reconstruct, and to repair and maintain, bridges upon the public highways in the county, crossed by ditches made by the district.
The relief asked is by way of a mandatory injunction. A sharp issue presented is the question whether the defendant district was organized under and is subject to the provisions of the Drainage Act of 1913 (Laws 1913, pp. 232-267; article 1, c. 28, R. S. 1919) or was organized under and subject to the provisions of article 1, c. 41, R. S. 1909, and the repealing and amendatory act of 1911 (Laws 1911, p. 205).
The contention of the defendant district is that it was organized under the earlier act whereby, as has been held in numerous decisions, the duty to construct such bridges was imposed upon the county. State ex rel. v. Chariton Drainage District, 252 Mo. 345, 158 S. W. 633; State ex rel. v. Little River Drainage District, 269 Mo. 444, 190 S. W. 897; State ex rel. Caruthers v. Little River Drainage District, 271 Mo. 429, 196 S. W. 1115. There is also a controversy upon the question whether the county or the district must repair and maintain bridges already constructed. The bridges involved, except one, were constructed by the district at the time of and in connection with the making of the ditches. One bridge, already existing, was moved and relocated by the district. Within a few years after the making of the ditches, there was a great enlargement of them by the action of the water, and several of the bridges went out, and others were rendered unsafe and in need of readjustment and repairs.
Under the foregoing, and additional to the question as to which of the legislative acts is to be taken as defining the rights and duties of the parties, there is discussion in the briefs of counsel, upon the question of the common-law duty and liability of the district, as the party whose act made necessary the construction and maintenance of bridges upon the highways intersected by those ditches. First in order, and in importance, is the determination of the dispute as, to which legislative act governs. Was the defendant district organized under the act of 1913? The final decree incorporating the defendant district was entered in October, 1914. We find from the record made that the original articles of association for the organization of the district were filed on November 2, 1912. Process issued thereon, and an order of publication was made, and service was had personally, or by publication, upon nearly all of the nonpetitioners before the next, the January, 1913, term. At that term, on February 3, 1913, certain of the nonpetitioners took leave to answer, and an alias order of publication was made against certain named nonpetitioners not theretofore served. A judgment by default was then rendered against the parties who had been served personally, or by publication, and the cause was continued to the next term. It is conceded that all of the parties nonpetitioners were served personally, or by publication. At the May term, 1913, certain amendments of the petition and articles of association were made by interlineation.
The record here does not show the proceedings which immediately followed the one just mentioned, but shows that, later, the incorporators filed in the proceeding their amended petition and articles of association. The record entry introduced shows the filing of this on February 7, 1914, but the final decree recites the filing of an amended petition and articles at the May term, 1914. The instrument so filed in form, both a petition and articles of association, ran as follows:
"Your petitioners for their amended petition and articles of association herein, leave of court first obtained, state: That be it known that we, whose names are subscribed to the original petition filed herein, and also who, at the first filing of the original petition, owned the majority of acres in a contiguous body of swamp land located along Grand river in Cass and Bates counties, Mo., desiring to form and organize a drainage district for the purpose of protecting and reclaiming said lands from the effects of water, by drainage or otherwise,' for sanitary and agricultural purposes as provided by article one (1), chapter forty-one (41) of the Revised Statutes of 1909 and amendments thereto by the laws of Missouri enacted in 1911 and found on pages 205 to 222 of the said statutes of Missouri, as the same were amended by the Laws of Missouri enacted in 1913 and found on pages 232 to 267 of said statutes of Missouri, do hereby make and adopt the following as amendatory of the original articles of association by us signed."
It then continued setting out the particulars.
Paragraph 1 gave the name of the proposed district, and the period of 50 years for corporate continuance.
Paragraph 2 set out the boundary and exterior limits of the district in detail. (It is recited in the abstract that the boundary lines so set out were generally the same as those set out in the original articles, but some additional land was included, and some in the original was left out, making the total acreage somewhat less than that included in the original.)
Paragraph 3 gave the names and places of residence of owners of the land who were known, with the description of the lands or property owned by each.
Paragraph 4 gave a list of the owners who were not petitioners and description of their lands and description of the lands and interest of unknown persons, and asked for an order of notice by publication as to such persons.
Paragraph 5 set forth that, of the total of 18,876 acres in the proposed district, 11,089 acres were owned by the petitioners and 7,787 by nonpetitioners.
By paragraph 6 it was stated that the owners "whose names are subscribed hereto" obligated themselves to pay the tax or taxes assessed against their lands for the expenses of organization and of the improvements to be made, and they prayed that the lands described "be declared a drainage district under the provisions of the statutes of Missouri aforesaid." An order of publication upon the amended petition and articles was made, and publication was then had in certain newspapers in Bates and Cass counties.
The notices described all the lands within the district as bounded in the amended articles, and the names of the several owners their places of residence, and the number of acres owned by each, and the order and notices, by reference, were based upon the amended petition and articles of association, and the notices advised all parties interested "that articles of association and amendments thereof, asking that the foregoing lands and other property be formed into a drainage district, under the provisions" of the Drainage Act of 1913, had been filed. The notices particularly identified that act by quoting the title thereof in full, and as having repealed article 1 of chapter 41, R. S. 1909, and the act of 1911. The parties thereby were notified to appear at the May term, 1914, "and show cause, if any there be, why said drainage district, as set forth in the articles of association as amended, shall not be organized as a public corporation in the state of Missouri." Proof of publication of the notice was duly made.
The final decree is in two parts. The first part was entered on September 7, 1914. Therein the court found that all the parties defendant had been duly notified personally, and by publication, and by waiver of service duly signed and filed, and the order recited that the "cause, all and singular, is taken up and submitted to the court upon the petition, amended petition, pleadings, and articles of association, signed and filed herein, and upon the objections filed, and upon evidence offered and heard in behalf of the petitioners, and that offered and heard in behalf of the defendant objectors, and objecting petitioners," and the cause was thereupon taken under advisement by the court.
The final part of the decree was entered on October 16, 1914. In that decree the court made recital that the petition and articles of association were duly signed and filed in the office of the clerk on the 2d day of November, 1912, and made a finding of service had upon all defendants more than 30 days "before the 1st day of the last May term of this court." The decree then recited the filing of "an amended petition" at the preceding May term, and the making of an order of publication thereon, and found that due proof had been made of said publication. The decree, continuing, contains the finding by the court:
"That said petition, amended petition, and articles of association filed herein, were and are duly signed by a majority in interest of the owners, etc."
The decree, in its findings, makes findings conformable to the terms of the amended petition and articles of association in all respects. The recital is:
That the court "finds that the said petition and amended petition and articles of association were signed by the owners of 11,089 acres of said body and the nonpetitioners owned only 7,087 acres of the said body."
In the next clause of the decree the court again recited a finding of the...
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