State v. Hill

• Decision Date: 25 May 1923
• Docket Number: No. 18249.,18249.
• Citation: 212 Mo. App. 173,253 S.W. 448
• Parties: STATE ex rel. HARRISON et al. v. HILL et al.
• Court: Missouri Court of Appeals

253 S.W. 448

212 Mo. App. 173

STATE ex rel. HARRISON et al. v. HILL et al.

No. 18249.

St. Louis Court of Appeals. Missouri.

May 25, 1923.

Rehearing Denied July 19, 1923.

Appeal from Circuit Court, Clark County; N. M. Pettingill, Judge.

Application for mandamus by the State, on the relation of Frank B. Harrison and others, against G. W. Hill and others. Judgment for respondents, and relators appeal. Affirmed.

Plantz, Lamet & Plantz, of Warsaw, III., and C. T. Llewelyn and John M. Dawson, both of Kahoka, for relators.

T. L. Montgomery, of Kahoka, for respondents.

BIGGS, C.

Through an application for a writ of mandamus filed in the Clark county circuit court, the relators, being owners of land in the Des Moines end Mississippi levee district No. 2 of Clark county, Mo., seeks to compel the respondents, the board of supervisors of said district, to carry into effect a plan for reclaiming and protecting the lands of said district from the overflow of water so as to make them sanitary and suitable for agricultural purposes, which plan was approved by the circuit court of said county.

Upon the filing of relators' petition a preliminary writ was issued and an order to show cause made upon respondents. Whereupon they filed their return, and relators demurred thereto, which demurrer was by the court overruled. Thereupon the relators refused to further plead, and they appeal from a judgment of the circuit court of said county in behalf of respondents.

The levee district referred to, containing some 11,000 acres of land in the northeastern part of Clark county, is a corporation operating and governed by the provisions of article 9, chapter 28, of the Revised Statutes of Missouri 1919, and the respondents are its duly elected and qualified board of supervisors.

A certain amended "Plan for Reclamation" was adopted by the board of supervisors, who in December, 1919, under the provisions of section 4636, filed a petition in the circuit court of Clark county, asking that court's permission to amend, change, and modify the original plan for reclamation of the lands of said district. Due notice was thereupon given to the landowners of the district by publication as required by the statute; certain objections were filed by some of the landowners, and the court after a hearing granted the prayer of the petition amending the said plan for reclamation, and entered its decree accordingly, which decree authorized the board of supervisors to amend, change, modify, and adopt the said amended plan for reclamation. No appeal was taken from this decree.

Relators' petition charges:

"That afterwards commissioners were duly appointed by the circuit court of Clark county, Mo., to appraise the lands and other property to be taken and acquired within or without said district in the erection and construction of the improvements and for right of way and assess the amount of benefits and damages to any and all lands, railroads and other property of said district, and that said commissioners proceeded to inspect and view the lands and other property in said district, and on the 20th day of July, 1921, said commissioners filed their report in writing in the office of the circuit clerk of Clark county, Mo., and the circuit clerk gave due notice thereof by causing publication of notice for four consecutive weeks in the Gazette-Herald, a newspaper published in Clark county, Mo., to wit, on August 5, 1921, August 12, 1921, August 19, 1921, and August 26, 1921, and that all the owners of lands, corporate and other property in said district were duly and legally notified of the filing of said commissioners' report, and that only two property owners, the Chicago, Burlington & Quincy Railroad Company and J. M. Dawson, filed objections and exceptions to the report, and that thereafter on October 20, 1921, the circuit court of Clark County, Mo., duly entered its decree approving and confirming said commissioners' report.

"That thereafter the clerk of the circuit court of Clark county, Mo., transmitted a certified copy of the decree of the circuit court therein and a copy of the commissioners' report as approved and confirmed by the circuit court of Clark county, Mo., to the secretary of the board of supervisors of the Des Moines and Mississippi levee district No. 1, as required by provisions of section 4613, R. S. Mo. 1919.

"That all the necessary procedure and the assessment of benefits and damages under and pursuant to said amended `Plan for Reclamation' have been done and performed, but that respondents have neglected to further proceed with the improvements set forth and contained in said amended `Plan for Reclamation' and failed to have the secretary of the board to make and transmit a certified copy of the decree of circuit court of Clark county, Mo., confirming the commissioners' report to the recorder of deeds of Clark county, Mo., as provided by section 4613, R. S. Mo. 1919, and also respondents refuse to levy the tax on such portions of the land of the district upon which benefits were assessed by the board of commissioners as approved by the circuit court of Clark county, Mo., as provided by section 4615, R. S. Mo. 1919, and said board of supervisors, the respondents herein, refuse to perform any and all acts to complete the constructions and carrying out of the amended `Plan for Reclamation' as is provided by article 9, c. 28, Revised Statutes of Missouri 1919."

As the relators' demurrer was overruled to the return of the respondents, the said return is set out here in full, and is as follows:

"Now come the said G. W. Hill, George Cannon, Henry D. Voss, Jr., Joseph Woods and Samuel Hammond, and for their return to said writ of mandamus, and admit:

"That the Des Moines and Mississippi levee district No. 1 was and is a drainage district, duly organized, incorporated and existing under and by virtue of article 9, chapter 28, Revised Statutes of Missouri 1919.

"Admit that they are and for some time past have been the duly elected, qualified and acting members of the board of supervisors of said drainage district.

"Admit that an amended plan for reclamation named in the petition and alternative writ was adopted by the board of supervisors and approved by the court, and thereafter commissioners' report was duly made and filed in the cause, and commissioners' report was approved as stated in the petition, and a decree awarded therein. Respondents `say that thereafter at the annual meeting of the landowners of defendant levee district, called and held on the 18th day of February, 1922, notice of which was duly published according to law; in the Free Press, a newspaper published twice a week at the city of Kahoka, in Clark county, Mo., and having an extensive circulation in said district, notifying the landowners of said district of the time and place and the propositions to be presented at the annual meeting and in addition to the regular order of business of said annual meeting `in said district, it was expressly' set out in said notice as one of the propositions to be presented, as follows, to wit:

" The board desires that all landowners be present to express their wishes as to whether the board shall at this time begin and complete the amended plan' for reclamation which has been adopted by the board and approved by the circuit court.'

"That said notice was published in said newspaper for two weeks successively, as approved by section 4600, Revised Statutes of Missouri 1919, notifying the landowners of said annual meeting, and at said annual meeting there was a large attendance of landowners of said district.

"At the said meeting of the landowners of said district duly called as aforesaid, and regularly held, after a full discussion by the landowners assembled, of the said amended plan, on a vote taken on the proposition to adopt or reject the said amended plan for reclamation, the vote stood unanimously; that is, 5,082 to reject said plan, and not one single vote of the landowners was recorded for it. The defendants say as a board they feel that they Might to recognize the vote of the landowners as well as their own idea regarding the amended, plan for reclamation, and after mature deliberation, and a full and complete understanding, are opposed to the present amended plan for reclamation of the district, and at a meeting of the board of supervisors held on July 10, 1922, the board of supervisor of said Des Moines and Mississippi levee district No. 1 passed the following resolution:

"`Whereas, by vote of the landowners of Des Moines and Mississippi levee district No. 1, at the annual meeting held February 18, 1922, the present plan for reclamation has been disapproved and rejected, and

"`Whereas, the board of supervisors concur in that view of it, and are desirous of lessening the expense of the improvements to be made in reclaiming the lands of the district, if found practicable and proper to do so, and

"`Whereas, it is believed that the same results can be accomplished without the expenditure of the money necessary to be expended on the present plan of reclamation of the district, and

"`Whereas, it in believed by the board of supervisors of the district that a better plan can be provided for the district:

"'Be it further resolved by the board of supervisors of the Des Moines and Mississippi levee district No. 1, that Chauncey J. Weinger, of Memphis, Mo., civil engineer, be, and he is hereby appointed as chief engineer of the district, with instructions to examine the present plan, maps and profiles, and make such or any necessary preliminary surveys with a view of determining upon the best plan for reclamation of said district, and that he consult with the Morgan Engineering Company, of Memphis, Tenn., as consulting engineers of the district, and ascertain the efficiency and cost of the present plan and advise and report to the board after conferring with it a feasible, adequate and efficient plan for reclamation of...