State v. Knott

• Decision Date: 02 October 1934
• Docket Number: No. 5533.,5533.
• Citation: 75 S.W.2d 86
• Parties: STATE ex rel. BYRD et al. v. KNOTT et al.
• Court: Missouri Court of Appeals

75 S.W.2d 86

STATE ex rel. BYRD et al. v. KNOTT et al.

No. 5533.

Springfield Court of Appeals. Missouri.

October 2, 1934.

Rehearing Denied October 24, 1934.

"Not to be published in State Reports."

Original mandamus proceeding by the State, on the relation of James L. Byrd and others, against W. D. Knott and others, as members of the Board of Supervisors of the St. Johns Levee and Drainage District of Missouri, to compel the calling of a landowners' meeting to elect members of the Board of Supervisors. On relators' demurrer to respondents' return to alternative writ.

Alternative writ made peremptory.

T. J. Brown, of Charleston, and Finch & Finch, of Cape Girardeau, for relators.

Sharp & Baynes, of New Madrid, for respondents.

SMITH, Judge.

The pleadings in this case are rather lengthy, and we do not set them out in full. The relators have set out a reasonably clear and full statement of the case as made up by the pleadings, and we herein set it out practically as submitted by relators.

Statement.

This is an original proceeding in mandamus, instituted in this court by relators, James L. Byrd, Harry Roberts, J. L. Clevidence, J. O. Polhamus, and Joe H. Moore, by filing their petition praying this court to issue its alternative writ of mandamus addressed to respondents, W. D. Knott, L. C. Phillips, West Dawson, L. M. Stalcup, and L. B. McPheeters, as members of the board of supervisors of the St. Johns levee and drainage district of Missouri, requiring respondents to call a landowners' meeting of the owners of land and other property within the St. Johns levee and drainage district for the purpose of electing members of the board of supervisors. This court issued its alternative writ, and to said writ respondents W. D. Knott, L. C. Phillips, and West Dawson filed a return, to which relators in turn filed a demurrer; respondent L. B. McPheeters filed a return in which he admitted the facts alleged in the petition and in the alternative writ, and respondent L. M. Stalcup failed to file a return, and, of course, as to him the allegations in the alternative writ are taken as confessed.

This case will, therefore, be determined by this court upon the allegations of the petitions and alternative writ and the return filed thereto by respondents Knott, Phillips and Dawson, and a statement of the contents of the pleadings, therefore, is all that is necessary in order to state the facts which must be considered by this court.

The petition for the alternative writ filed by relators contained certain allegations of fact which are followed in the alternative writ which was issued. These allegations may be summarized as follows:

(1) That the St. Johns levee and drainage district of Missouri is a levee and drainage district organized under the laws of the state of Missouri and now existing under and by virtue of article 6, chapter 64 (sections 10902-10957), of the Revised Statutes 1929 (Mo. St. Ann. art. 6, c. 64, §§ 10902-10957, pp. 3592-3634).

(2) That the relators are the owners of land located within the confines of said district and are duly qualified voters, entitled to vote at all elections held by said district.

(3) That the respondents are the acting members of the board of supervisors of the St. Johns levee and drainage district, although no election had been held in said district since 1929, and that the term of office for which each of said members was elected has expired.

(4) That the original meeting of the landowners of the district, held for the purpose of electing a board of supervisors, was held in the month of June, and that subsequent annual meetings for the purpose of electing members of the board should have been called by the supervisors to be held in the month of June of each year.

(5) That the respondents failed to call a meeting of the landowners to be held in the month of June in either 1930, 1931, 1932, or 1933, and that in the month of May, 1934, the relators requested and demanded that the respondents call a meeting of the owners of land and other property in the district for the month of June, 1934, and that the respondents failed, neglected, and refused to call such meeting, and that again at the June monthly meeting relators made such demand, which demand was again refused, and that at the monthly July meeting relators made a demand for the calling of such meeting, and that the respondents, by resolution, provided for such meeting to be held on the 6th of August, 1934, in the city of New Madrid, and attempted to give notice thereof, but only published a notice for a week and then withdrew the publication and by order of record rescinded the order calling said meeting.

(6) That the landowners are entitled to elect five members of the board of supervisors at this time, and that the respondents have illegally and wrongfully refused to call landowners' meeting, as required by law, for the purpose of electing their successors.

The return of Knott, Phillips, and Dawson admits the organization of the St. Johns district, as alleged in plaintiffs' petition; admits that the respondents are the acting members of the board of supervisors; admits that at the July, 1934, meeting of the board of supervisors a resolution was adopted calling meeting of the landowners for the purpose of electing a board of supervisors; and admits that the board of supervisors, at the special meeting held thereafter, rescinded the order calling for the meeting of the landowners and withdrew the publication of notice; and the return further admits that the relators in this suit are landowners in the district and qualified voters at an election called for the purpose of electing members of the board of supervisors. The return does not deny, and in fact makes no reference whatever to, the allegations in the alternative writ of mandamus that no election has been held since 1929 and that the term of office of each of the acting members of the board of supervisors has expired; that the original meeting of the landowners of the district was held during the month of June; that it became and was the duty of the board of supervisors of the district to call a meeting of the owners of land and other property in the month of June, 1930, and annually for the purpose of electing members of the board of supervisors; that no elections were held in June, 1930, 1931, 1932, or 1933; that relators, in the month of May, 1934, presented a written request or demand for a landowners' meeting; that relators made a further demand in June, 1934; and that respondents have wrongfully failed to perform their duty as required by law in failing and refusing to call a meeting of the owners of land or other property in said district for the purpose of electing their successors as members of the board of supervisors.

The respondents set up in their return that on the ____ day of July, 1934, they were served with notice of an injunction suit filed in the circuit court of New Madrid county, wherein S. L. Hunter was plaintiff and St. Johns levee and drainage district and respondents were defendants, which said injunction proceeding sought to enjoin the respondents from proceeding further in holding an election on the 6th of August, 1934, or at some other date pending the determination of a suit to change the boundary lines of the district. The respondents further pleaded that S. L. Hunter, the plaintiff in the injunction suit, is a landowner within the district and a qualified voter, the same as relators in this proceeding.

The petition in the injunction suit filed and pending in the circuit court of New Madrid county is set out verbatim in the respondents' return. The petition in that injunction suit alleges that the board of supervisors, on the 28th day of July, 1934, adopted a resolution providing that the board should present a petition to the circuit court of New Madrid county, seeking a change in the plan of reclamation and to change the boundary line of the district to exclude a large amount of territory and thereby exclude the owners of the land from voting in the election of the board of supervisors. The petition further sets up that the board of supervisors of the St. Johns levee and drainage district had adopted a resolution calling a meeting of the owners of land and other property in the district for the purpose of electing a board of supervisors, and that the board at the time was publishing a notice of said election, and, unless restrained, the election would be held before the circuit court of New Madrid county had time to act upon the resolution to change the plan of reclamation and change the boundary lines. The petition in the injunction suit further alleges that the board of supervisors elected at the election to be held on August 6, 1934, if the election be not enjoined, would be elected by the landowners whose lands would subsequently be excluded from the district should the court act favorably upon the resolution adopted by the board to change the boundaries of the district, and that such board of supervisors elected by the landowners sought to be excluded would not function in the interest of the properties and owners remaining in the district, but would represent interests antagonistic thereto and not in common with the interest of the owners of land and other property remaining in the district. The above are the grounds set up in the petition for an injunction as the basis for injunctive relief.

Inasmuch as relators have filed a demurrer to the return of respondents herein, the allegations in the return that the injunction suit of S. L. Hunter was filed in the circuit court of New Madrid county; that respondents were served with a notice of the filing of an injunction suit; that said suit is pending in the circuit court of New Madrid county and undisposed of; and that the plaintiff therein is a landowner and qualified voter in the district, are taken as admitted. The return further sets up that the circuit court of ...