State v. Hughes

• Decision Date: 06 April 1922
• Docket Number: No. 23391.,23391.
• Parties: STATE ex rel. NORBORNE LAND DRAINAGE DIST. C. OF CARROLL COUNTY et al. v. HUGHES, Circuit Court Judge, et al.
• Court: Missouri Supreme Court

240 S.W. 802

294 Mo. 1

STATE ex rel. NORBORNE LAND DRAINAGE DIST. C. OF CARROLL COUNTY et al. v. HUGHES, Circuit Court Judge, et al.

No. 23391.

Supreme Court of Missouri, in Banc.

April 6, 1922.

Rehearing Denied April 29, 1922.

S. J. & C. C. Jones, Conkling & Withers, and Franken & Timmons, all of Carrollton, for relators.

Frank Atwood, of Carrollton, Perry S. Rader, of Jefferson City, and Paul D. Kitt, of Chillicothe, for respondents.

ELDER, J.

This is an original proceeding for a writ of prohibition. Relator Norborne Land Drainage District Company of Carroll County, Missouri, is a drainage district corporation, and relators H. H. Franken and others constitute the Board of Supervisors of said district. Relator Joe Franken is the secretary and treasurer of said district. Respondent Hughes is Judge of the Seventh Judicial Circuit of Missouri, and as such is acting Judge of the Circuit Court of Ray and Carroll Counties. Respondents Cole and other are plaintiffs in a suit now pending in the Circuit Court of Ray County, wherein relators are defendants, in which suit it is sought to declare null and void a judgment rendered by the Circuit Court of Carroll County extending the boundary lines of said drainage district, and to cancel a tax for benefits levied by defendants on the lands of said plaintiffs. The remedy sought herein is to prevent respondent Hughes from assuming jurisdiction and trying the said suit. This same litigation, in a different form, has recently been before this court. State ex inf. McAllister v. Norborne Land Drainage District Co., 234 S. W. 344.

Relators petition for our writ of prohibition, which petition is quite lengthy, alleges substantially that the Norborne Land Drainage District Company was organized as a drainage district by decree of the Circuit Court of Carroll County rendered May 12, 1899; that said district comprised 14,400 acres, a majority thereof being situated in Carroll County; that said district was reorganized under the Act of 1913 (Laws of Missouri, 1913, pp. 232-267) by decree of the Circuit Court of Carroll County rendered January 12, 1917; that within 30 days thereafter a meeting of the land owners was held and a Board of Supervisors for said district was duly elected, which Board, within the time required by law, employed a chief engineer to prepare and submit a plan for reclaiming the land within said district, which said plan was duly made by said engineer and, on December 5, 1917, adopted by the Board: that on December 5, 1917, the Board of Supervisors filed with the Clerk of the Circuit Court of Carroll County, a petition for the extension of the boundary lines of said district so as to include large bodies of adjacent and contiguous, wet, swamp and overflow lands, comprising in said extended boundaries approximately 40,000 acres in Carroll and Ray Counties, including lands owned by the private respondents herein; that notice of the filing of said petition was duly given and that objections were thereafter filed by certain of respondents herein to the granting of the prayer of said petition; that thereafter a hearing was had by the said Circuit Court of Carroll County upon the said petition and the objections thereto, after which said court, on August 12, 1918, rendered its decree extending the boundary lines of said district so as to include the lands of the private respondents herein in Ray County, and other lands; that thereafter the Judge of the said Circuit Court of Carroll County appointed commissioners to assess benefits and damages in said district as extended; that said commissioners made report of their findings, said report being duly filed with the Clerk of the Circuit Court of Carroll County, and notice of the filing thereof being given as required by law; that exceptions were filed to said report by certain of respondents and that thereafter, on December 23, 1919, said Circuit Court of Carroll County rendered its decree modifying and confirming the commissioners' report, and assessing benefits in the aggregate sum of $1,154,345.02 against the lands of the private respondents herein and other lands; that on January 3, 1921, this court issued its preliminary writ of quo warranto in the case of State ex inf. McAllister, Attorney General, ex rel. Charles D. Cole et al., Relators, v. Norborne Land Drainage Dist. Co. of Carroll County, 234 S. W. 344, calling upon the respondent drainage company to show by what right and authority it held and exercised its franchises over the lands of said relators; that respondent drainage company filed its answer and return in said cause and the same coming on for hearing, this court en banc, on October 20, 1921, rendered judgment quashing said writ of quo warranto; that after the rendition of said judgment by this court the Board of Supervisors of said drainage district met and adopted a resolution finding that it was necessary that said district issue bonds in the aggregate sum of $550,000 to pay the cost of constructing the works provided for in the plan of reclamation of said district, which resolution provided that advertisements be given for the sale of said bonds and receiving bids therefor, and further provided that the actual amount of bonds to be delivered to the purchasers thereof should be the total bond issue less such amount as might be paid in cash by the land owners in said district; that said bonds were duly sold on November 4, 1921, to the Commerce Trust Company of Kansas City, Missouri, and its associates, and it was agreed by resolution to deliver the bonds to the purchasers thereof by January 1, 1922, in the amount of $550,000, less such amount as the land owners in said district might pay in cash; that thereafter the Board of Supervisors of said district by resolution duly levied and assessed against the land and other property in said `district, benefit assessments in the aggregate sum of 81,088,992.65, said sum representing assessments to pay the principal of the bond issue in the sum of $515,000 (said issue having been reduced by $35,000 in cash paid in by land owners), together with 10 per cent, for emergencies and interest to accrue at the rate of 6 per cent. per annum during the term of said bond issue; that said assessments are duly evidenced by certified drainage tax records now on file in the offices of the Recorders of Deeds for Ray and Carroll Counties; that on December 31, 1921, said $515,000 of bonds were duly executed and registered by the State Auditor of the . State of Missouri and are now in the custody of the treasurer of the drainage company awaiting to be delivered to the aforesaid Commerce Trust Company and its associates, but that the same cannot be delivered because of the litigation now pending against said drainage company in the Circuit Court of Ray County, hereinafter referred to; that after said bonds had been sold as aforesaid, advertisements for bids for the construction of ditches provided in said plan of reclamation were made and bids were received and contracts let for the construction of said work and that the contractors are now ready to proceed with the construction of said work when said bonds are delivered, at which time the money necessary for said work will be received from the purchasers of said bonds; that the private respondents herein had full knowledge that the bonds of said district were being sold as aforesaid and that bids for the construction of said works had been received, and the suit hereinafter referred to was filed for the purpose of harassing and annoying relators and delaying the construction of the works of said district; that on January 3, 1922, there was filed in the office of the Clerk of the Circuit Court of Ray County, a petition in which the plaintiffs are the same identical parties as the private relators in said quo warranto proceeding above referred to, and that the defendants in said suit are the relators herein; that the petition in said suit is practically a verbatim copy of the petition filed in this court for said writ of quo warranto and seeks to annul and vacate said decree of the Circuit Court of Carroll County of August 12, 1918, extending the boundary lines of said district, and the decree of December 23, 1919, confirming and modifying the commissioners' report, for identically the same reasons that it was sought to have said judgment vacated in this court in said proceeding by quo warranto; that practically the only difference in the petition filed in the Circuit Court of Ray County and the petition filed in this court in quo warranto (except the prayer thereof) is that said petition now pending in Ray County alleges in addition that said judgments of August 12, 1918, and December 23, 1919, and the taxes assessed in said district, constitute a cloud on the title of the lands in said district and prays that said cloud be removed.

Here the petition in the instant proceeding sets out in full the petition filed in the Circuit Court of Ray County. The latter is extremely lengthy, comprising 37 pages of the printed abstract. We will not endeavor to reproduce it. Suffice it to say that by actual comparison with the petition in the quo warranto proceeding of State ex inf. McAllister v. Norborne Land Drainage District Co., 234 S. W. 341, we find that it is in the main a verbatim copy thereof. The only practical difference is that the petition in the Ray County Court avers in addition, that the levy of taxes by the Board of Supervisors, made pursuant to the decrees of August 12, 1918, and. December 23, 1919, constitutes a cloud upon the title of plaintiff's land, and that plaintiffs have no remedy save in equity. The prayer in part is, that the judgment of the Circuit Court of Carroll County extending the boundary lines of the district, and the judgment confirming the commissioners' report assessing benefits, be declared null and void. (This was in part the same relief prayed for in the quo warranto proceeding.) The...