State v. Taylor

• Citation: 123 S.W. 892
• Parties: STATE ex rel. APPLEGATE et al. v. TAYLOR et al.
• Decision Date: 21 December 1909
• Court: United States State Supreme Court of Missouri

123 S.W. 892

STATE ex rel. APPLEGATE et al. v. TAYLOR et al.

Supreme Court of Missouri.

December 21, 1909.

1. DRAINS (§ 14) — DRAINAGE DISTRICT — ESTABLISHMENT — PETITION — SUFFICIENCY.

Under Rev. St. 1899, § 8279 (Ann. St. 1906, p. 3917), providing that the petition for the organization of a drainage district shall be signed by 1 or more landowners where the improvements asked for are less than 5 miles in length, and by 5 or more where the improvements are to be more than 5 miles in length, a petition for the establishment of a district for the improvement of a river 35 miles in length, which is signed by 125 resident freeholders owning overflowed lands adjacent to the river, is sufficient, without giving the names of other persons owning lands embraced within the proposed district.

2. DRAINS (§ 14) — DRAINAGE DISTRICT — ESTABLISHMENT — PETITION — SUFFICIENCY.

Rev. St. 1899, §§ 8278-8317c (Ann. St. 1906, pp. 3916-3935), providing for the drainage of overflowed lands, does not require the petition for the organization of a drainage district to contain a description of the lands to be embraced in the proposed district.

3. DRAINS (§ 14) — DRAINAGE DISTRICT — ESTABLISHMENT — PETITION — SUFFICIENCY.

Under Rev. St. 1899, §§ 8278, 8279 (Ann. St. 1906, pp. 3916, 3917), providing for the drainage of overflowed lands, and declaring that the petition therefor shall give a general description of the proposed drain, starting point, route, and terminus, a petition which states that the starting point of the proposed improvement would be at a county line, where the river sought to be improved crosses the county line about the center of the east line of a designated section, township, and range, and follow the present bed of the river as near as practicable until it reaches another river near the southeast part of the northeast quarter of a designated section, township, and range, which course is more particularly described by survey thereof and plat filed and marked "Exhibit A," which with more particularity describes the termini and the course of the proposed improvement, is sufficient.

4. DRAINS (§ 14) — DRAINAGE DISTRICT — ESTABLISHMENT — PETITION — SUFFICIENCY.

Under Rev. St. 1899, §§ 8278-8317c (Ann. St. 1906, pp. 3916-3935), providing for the organization of drainage districts to reclaim overflowed lands, a petition for the organization of a district need not allege the width of the proposed ditch.

5. DRAINS (§ 14) — DRAINAGE DISTRICT — ESTABLISHMENT — PETITION — SUFFICIENCY.

Under Rev. St. 1899, § 8279 (Ann. St. 1906, p. 3917), providing that the petition for the organization of a drainage district for the construction or improvement of any water course shall be signed by the landowners whose lands will be liable to be affected by or assessed for the construction of the same, a petition stating, "We, your petitioners, resident freeholders * * * and each owning * * * overflowed lands" adjacent to a river, believing that improvement of the river will prevent the frequent overflows of the river to the damage of the adjacent lands, etc., sufficiently shows that the petitioners possess the statutory qualifications.

6. DRAINS (§ 14) — DRAINAGE DISTRICTS — ESTABLISHMENT — FINDING OF COUNTY COURT — CONCLUSIVENESS.

A finding of the county court, in proceedings for the organization of a drainage district for the improvement of a river, that the petition for the construction of the proposed improvement 35 miles in length was signed by more than 5 landowners whose lands will be affected by or assessed for the construction of the same, based on the allegations of the petition, signed by 125 owners of overflowed lands adjacent to the stream, is not reviewable on certiorari.

7. DRAINS (§ 14) — DRAINAGE DISTRICTS — PROCEEDINGS — JURISDICTION.

The failure to give the statutory bond, in a proceeding under Rev. St. 1899, §§ 8278-8317c (Ann. St. 1906, pp. 3916-3935), for the organization of a drainage district to reclaim overflowed lands, does not affect the jurisdiction of the court, as the bond required is merely a cost bond, obligating the petitioners to pay the costs of the proceedings on the denial of the petition.

8. DRAINS (§ 14) — DRAINAGE DISTRICTS — PROCEEDINGS — BONDS — SUFFICIENCY.

A bond, signed as principal by all the petitioners for the organization of a drainage district, conditioned as required by Rev. St. 1899, § 8279 (Ann. St. 1906, p. 3917), on the payment by the petitioners of the costs on the denial of the petition, is sufficient as against the objection that the two persons named as sureties did not sign as sureties.

9. DRAINS (§ 14) — DRAINAGE DISTRICTS — PROCEEDINGS — JURISDICTION.

In proceedings under Rev. St. 1899, §§ 8278-8317c (Ann. St. 1906, pp. 3916-3935), for the organization of drainage districts to reclaim overflowed lands, the filing of the petition required by section 8279 vests jurisdiction in the county court over the subject-matter, and it acquires jurisdiction over the persons of the landowners on giving them the statutory notice of the pendency of the petition, and by service of the notice required by section 8286 and by section 8287 as amended by Acts 1905, p. 183 (Ann. St. 1906, p. 3920).

10. DRAINS (§ 14) — DRAINAGE DISTRICTS — ESTABLISHMENT — PUBLICATION OF NOTICE OF PENDENCY OF PETITION — SUFFICIENCY.

Proof that the notice of a petition for the organization of a drainage district was published in a newspaper in the county authorizes the court, in the absence of any evidence on the subject, to find that the newspaper was one of general circulation, as required by Rev. St. 1899, § 8281 (Ann. St. 1906, p. 3918).

11. DRAINS (§ 14) — DRAINAGE DISTRICTS — ESTABLISHMENT — PUBLICATION OF NOTICE OF PENDENCY OF PETITION — SUFFICIENCY.

In proceedings under Rev. St. 1899, §§ 8278-8317c (Ann. St. 1906, pp. 3916-3935), for the organization of a drainage district, the court, while passing on the proof of the publication of the notice of the pendency of the petition for the district, is not confined to the affidavit of the publisher of the newspaper in which the notice was published, but it may call the publisher in person, or any other witness, to testify orally as to the character of the paper's circulation.

12. CERTIORARI (§ 66) — PRESUMPTIONS.

Where the court acted in a matter within its jurisdiction, the Supreme Court, on certiorari to review the determination, must, in the absence of a showing to the contrary by the record, presume that the lower court performed its duty.

13. DRAINS (§ 14) — DRAINAGE DISTRICTS — ESTABLISHMENT — REVIEW.

Where the objectors to the organization of a drainage district knew of the petition for the district, and were actually in court and participated in the proceedings, the determination of the court would not be disturbed on certiorari, on the ground of the insufficiency of the publication of the notice of the petition for the organization of the district.

14. DRAINS (§ 14) — DRAINAGE DISTRICT — ESTABLISHMENT — PETITION — NOTICE.

Rev. St. 1899, § 8281 (Ann. St. 1906, p. 3918), requiring the publication of a notice of the pendency of a petition for the organization of a drainage district, etc., does not require that the notice shall give the names of the owners of the land in the proposed district; but a notice which simply invites the persons concerned is sufficient.

15. DRAINS (§ 14) — DRAINAGE DISTRICT — ESTABLISHMENT — PETITION — NOTICE.

The publication of the notice required by Rev. St. 1899, § 8281 (Ann. St. 1906, p. 3918), of a petition for the establishment of a drainage district does not bring into court the persons whose lands are actually embraced within the boundaries of the proposed district; but such persons are brought into court by virtue of the notice given, either by section 8286, or by section 8287 as amended by Laws 1905, p. 183 (Ann. St. 1906, p. 3920), and hence section 8281 is not invalid, because failing to provide for a sufficient notice to the persons liable to be affected by or assessed for the construction of a proposed drainage system.

16. CONSTITUTIONAL LAW (§ 191*) — STATUTORY PROCEEDINGS — RETROSPECTIVE LAWS.

Laws 1905, p. 183, amending Rev. St. 1899, § 8287 (Ann. St. 1906, p. 3920), merely changes the course of procedure in court for the establishment of a drainage district, and applies to proceedings pending at the time of its enactment.

17. CONSTITUTIONAL LAW (§ 326) — DENIAL OF JUSTICE.

Rev. St. 1899, § 8292, as amended by Laws 1903, p. 235 (Ann. St. 1906, p. 3923), requiring the giving of a cost bond as a condition precedent to the right to file exceptions to the apportionment made by viewers in proceedings for the construction of a drainage system, is in conflict with Const. art. 2, § 10 (Ann. St. 1906, p. 132), providing that justice shall be administered without sale or denial.

18. CONSTITUTIONAL LAW (§ 42) — INVALIDITY OF STATUTES — RIGHT TO RAISE QUESTION.

Where the objectors to the apportionment by viewers in proceedings for the construction of a drainage system were permitted to file objections without giving the cost bond required by Rev. St. 1899, § 8292, as amended by Laws 1903, p. 235, repealed by Laws 1905, p. 185 (Ann. St. 1906, p. 3923), taking effect prior to the date of the filing of the viewers' report, the objectors were not entitled to contest the validity of section 8392 as amended.

19. STATUTES (§ 159) — REPEAL BY IMPLICATION.

To justify the repeal of a statute by necessary implication, there must be such a repugnancy and irreconcilable conflict between the statutes on the same subject that both cannot stand.

20. STATUTES (§ 159) — REPEAL BY IMPLICATION.

Rev. St. 1899, §§ 9283-9287 (Ann. St. 1906, pp. 4264-4266), requiring the division of county revenues into different funds, including a contingent fund, and prohibiting the payment of claims out of any other fund than the one against which they are drawn, etc., are not impliedly repealed by Laws 1899, p. 278, embodied...