State v. Hill
| Decision Date | 02 March 1923 |
| Docket Number | No. 18326.,18326. |
| Citation | 211 Mo. App. 623,249 S.W. 693 |
| Parties | STATE ex rel. HARRISON et al. v. HILL. |
| Court | Missouri Court of Appeals |
Relators are the owners of certain lands situated in the Des Moines and Mississippi levee district No. 1, Clark county, Mo. They seek a writ of mandamus to compel the respondents, who compose the board of supervisors of the district, to call an annual meeting of the landowners in the district, as is required and provided by article 9, c. 28, Revised Statutes 1919, and that said meeting be called in February 1923, or as soon thereafter as time will permit, as provided by sections 4600 and 4603 of said article and chapter.
It is alleged in the application for the writ that the district was regularly incorporated by the circuit court of Clark county, Mo., in the year of 1903 under the provisions of article 7, c. 122, of the Revised Statutes of Missouri 1899, now article 9, c. 28, of the Revised Statutes of Missouri 1919, and that from the time of the incorporation of the district the corporation has been operating under the provisions of said statutes and tho acts amendatory thereof; that the respondents are the duly elected and qualified members of the board of supervisors of the district; that the annual meeting of the landowners has heretofore been held in February of each year, at which time one member of the board of supervisors has been elected for a term of five years, as provided in said statutes, and in the manner provided by sections 4600 and 4603 of the Revised Statutes of 1919, and that the month of February, 1923, is the month of the year when the board of supervisors are required by law to call the annual meeting of landowners, as provided in the sections of the statutes last referred to.
It is further averred that the respondents refused to call said landowners' meeting in the month of February, 1923, although the relators on February 3d filed a written demand upon said respondents to call said meeting in the month of February, as required by law; that the respondents held a meeting on February 5, 1923, but refused to call said landowners' meeting in the month of February or at any other time.
The respondents by their return to the alternative writ, after admitting that the district was organized under the provisions of article 7, c. 122, of the Revised Statutes of 1899, avers that the district was never reorganized under the act of 1913, which is article 9 of chapter 28 of the Revised Statutes of 1919. The return denies that the hoard of supervisors are required to hold the annual meeting in the month of February, and further denies that the board of supervisors is bound by the provisions of sections 4600 and 4603 referred to; that the annual meeting of the landowners is not affected by the provisions of article 9, c. 28, of the Revised Statutes of 1919, of which sections 4600 and 4603 are a part, for the reason that section 4650 of that article so declares; that by the act under which the levee district was incorporated and by the provisions of sections 8256 and 8363 of that law the matter of calling the annual landowners' meeting is discretionary with the board, and it does not require the meeting to be called in the same month that the first meeting of landowners is held.
It is further averred in the return that the respondents on the 19th day of February, 1923, at a meeting regularly held, called a landowners' meeting of said levee district to be held on Saturday, March 31, 1923, at the regular place of holding said meetings, and by order of record directed the secretary to cause notice to be published in accordance with the provisions of the law in such cases provided, which said meeting was called for the purpose of electing one member of the board of supervisors for five years, and to attend to such other business as may come before such meeting.
Further facts are set forth in said return, which are unnecessary to give in detail, which are stated for the purpose of justifying the action of the board in delaying the holding of the annual meeting until March 31, 1923, and in which it is set forth that the last annual meeting of the landowners was held on February 18, 1922.
The relators have filed a motion to strike out respondents' return, which is in effect a demurrer thereto.
It is the contention of the relators that, inasmuch as the annual meeting of the landowners of the district has heretofore been held in the month of February, the respondents are required, under the provisions of sections 4600 and 4603, Revised Statutes 1919, to call the annual meeting of landowners of the district In that month; that the district as organized is governed by the provisions of these statutes with reference to the question of calling the annual meeting; that section 4603, referred to, provides that in the same month of each year after the election of the first board of supervisors, the board of supervisors shall call a meeting of the landowners of the district in the manner provided for in section 4600; that the duty of calling such meeting imposed upon the board by said statute is purely ministerial in character; and that, inasmuch as respondents have refused to call such meeting, they should be compelled to do so by our writ of mandamus.
On the other hand, it is contended by respondents that, Inasmuch as the district was organized in 1903 under the law then applicable to levee districts, being article 7 of chapter 122 of the Revised Statutes of 1899, the district is still governed by the provisions of that act and are not bound in the matter of calling annual meetings by the provisions of sections 4600 and 4603 of our present statute; that under the old law under which the district was organized, and by the provisions of section 8256 of the Revised Statutes of 1899, the time and place of calling such meeting is left to the board of supervisors. The latter section provides:
"Every year after the election of the first board of supervisors, at such time and place in said district as the board of supervisors may designate, and upon not less than fifteen days' notice, the owners of the lands in such district shall meet and elect one supervisor," etc.
It is therefore contended by respondents that the district is governed by this provision of the old law, and that such statute leaves the matter of the time and place of holding the annual meeting of landowners to the discretion of the board of supervisors, and hence such discretion should not be interfered with or controlled by any action on our part.
The question involved is whether the respondents are governed in the matter of the time of calling the annual meeting of landowners by the provisions of article 9, c. 28, of the Revised Statutes of 1919, our present law relating to levee districts, or by the provisions of the old law of 1899, under which the district was organized. Article 9, c. 28, referred to, was passed in 1913, and is found in the Session Acts of that year (page 290). It appears from the act that it was intended to repeal article 9, c. 41, of the Revised Statutes of 1909, and also to repeal an act amending said article 9 of the Laws of Missouri 1911 and all sections thereof, and to enact new law in lieu thereof. Article 9, c. 41. Revised Statutes 1909, is a revision of article 7, c. 122, of the Statutes of 1899.
Section 53 of the act of 1913 (section 4650, R. S. 1919) provides that—
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