State v. West

• Decision Date: 01 December 1917
• Docket Number: No. 20378.,20378.
• Citation: 272 Mo. 304,198 S.W. 1111
• Parties: STATE ex rel. CLARKE et al. v. WEST et al.
• Court: Missouri Supreme Court

198 S.W. 1111

272 Mo. 304

STATE ex rel. CLARKE et al. v. WEST et al.

No. 20378.

Supreme Court of Missouri. In Banc.

December 1, 1917.

Original mandamus proceedings by the State, on the relation of E. R. Clarke and others against C. S. West and others. Alternative writ quashed.

This is an original proceeding by mandamus, whereby relators seek to compel respondents, as judges of the county court of Cass county, to make an order organizing certain lands of relators and others situate in Cass county into a drainage district, under the provisions of article 4 of chapter 41, Revised Statutes of Missouri of 1909, as amended by an act approved March 27, 1913. Laws 1913, pp. 271-281. This is the county court act, so called to distinguish it from a similar but procedurally different proceeding whereof the jurisdiction lies in the circuit courts. Upon the issuance of our alternative writ respondents demurred, thus in effect confessing, for the purpose of this inquiry, the truth of all allegations contained therein. The facts in the case are therefore to be found in the alternative writ. This writ is lengthy, and since no point is made touching its form, we may more briefly state the facts by epitomizing it and making excerpts from it. Reached in this way, the facts run thus: Petitioners are the owners of certain swamp and overflowed lands situate on and along Big creek, in Cass county, Mo., desiring to ditch and drain said lands, and having in contemplation the construction of ditches and improvements more than five miles in length, petitioners to the number of more than five, being the owners of a majority in acreage of the lands in the proposed district, filed with respondents, as members of the county court of Cass county, a petition with the necessary allegations touching the nature of the proposed improvements and the route and termini of the same. They likewise filed a proper bond, which was approved by respondents. Respondents thereupon, as such court, appointed three disinterested freeholders, and an engineer, who properly qualified and proceeded to view the lands proposed to be embraced in the district. Said viewers and engineer found, and so reported to the respondents, that the proposed improvement was necessary, practicable, and would be of public utility, and conducive to the public health, convenience, and welfare. The viewers and engineer also indicated in and by their report the character, dimensions, location, and probable cost of the drainage necessary to accomplish the objects of the petition.

After the filing of the report of the viewers and engineer, respondents made the proper orders of record, and caused a proper notice to be given by publication in a newspaper of the pendency of said petition, together with such other facts as are required in that behalf by the statute, and fixed a day at which the petition and the report of the viewers would be heard. Upon the day so fixed for the hearing of the petition "a remonstrance was filed by persons interested in land that would be affected by said proposed ditch and improvement, in which said remonstrance it was admitted that the proposed improvement contained swamp and overflowed land," but said remonstrance objected to the location of the improvements, as fixed by the petition and viewers' report, and set forth other grievances. Respondents thereupon proceeded to hear both the petitioners and the remonstrators, and at the conclusion of the hearing dismissed the petition, as will appear by their order made in the premises, which in full reads thus:

"Now on this 6th day of December, 1916, the day set for the hearing of the petition the report of the viewers heretofore appointed thereon and any objections on the part of any of the landowners within the boundaries of the proposed drainage district who might remonstrate or object to the proposed improvement and report of viewers, and it appearing to the court that due notice of the filing of said report was given according to law, and come now the petitioners and also T. J. George, W. W. Linn, N. Mickelson, T. W. Dean, Clara Reed, Addie Harris, C. L. Harris, M. Gray, Mark H. Beamer, N. N. Mills, G. W. Everett, H. K. Templeton, J. A. James, S. A. Thompson, Edna and W. E. Templeton, H. H. Sides, O. T. Souther, as remonstrators, and filed herein their remonstrances and objections to the formation and incorporation of said proposed improvements, and thereupon this cause is by the court now taken up for hearing, and the court having heard the pleadings, evidence, and arguments of counsel, and being fully advised in the premises, doth find that the petitioners and those joining by motion in the prayer of said petition, own a majority of the acreage of the lands within the boundaries of said proposed district, and the court doth further find by the great preponderance of the evidence adduced that the proposed ditch, levee, and other improvements are not necessary for sanitary or agricultural purposes, nor would they be of public utility, nor conducive to the public health, convenience, or welfare, nor are they practicable, and the court doth find against such proposed improvements, and doth dismiss the said petition and proceedings at the cost of the petitioners. It is therefore considered and adjudged by the court that the petition and proceedings be and the same are hereby dismissed, and that remonstrators go hence without day and have and recover from and against the petitioners as follows: E. R. Clark, L. W. Bixler, S. R. Sankey, James S. Gosnell, Louise Naden, H. H. Hodgson, E. S. Burroughs, Ema Schappert, G. W. Lightner, U. J. Groves, M. E. Seaton, J. R. Beasley, Mable Beasley, S. V. Tobin, Nellie Tobin, O. H. Beasley, D. E. Nichols, Mary Nichols, Geo. Dahman, John T. McDaniel, Pearl McDaniel, L. B. Singleton, O. E. Burris, H. J. Dahman, Millie Schmoll, Geo. W. Davis, Essie B. Hodgson, S. N. Mills, S. J. Mills, W. C. Johnson, R. B. Bronough, Independence Hunting Club, by Sam'l H. Woodson, Pres. Attest: H. A. Major, Secretary, Jessie L. Kerr, by Chas. C. Clasby, with power of attorney, all costs and charges herein laid out and expended, and that due process issue in this behalf."

Thereupon E. R. Clark and 37 others averring that it is the bounden duty of respondents, as judges of the county court of Cass county aforesaid, upon the showing by them made to make an order organizing the proposed drainage district as a body corporate, and that they are remediless in the premises by and through any ordinary process or proceeding at law, prayed our writ of mandamus commanding respondents to find in favor of making the improvements, and in favor of incorporating said proposed district as a body corporate. Upon filing the above petition we issued our alternative writ, to which, as stated, respondents have duly demurred, and therefore this case is here for determination upon the law applicable to the facts averred in the alternative writ. To the law of the case then we will address ourselves.

N. M. Bradley, of Warrensburg, and W. D. Summers, of Harrisonville, for relators. J. R. Nicholson, A. A. Whitsitt, J. S. Brierly, and T. N. Haynes, all of Harrisonville, for respondents.

FARIS, J. (after stating the facts as above).

The order of the county court, made by respondents as judges thereof, conclusively shows that the county court refused to organize the proposed drainage district, because it found "by the great preponderance of the evidence adduced that the proposed ditch, levee, and other improvements, are not necessary for sanitary or agricultural purposes, nor would they be of public utility, nor conducive to the public health, convenience or welfare, nor are they practicable." Thereupon, and for the reasons quoted, respondents dismissed the petition and proceedings at the cost of the petitioners therein.

Relators, as we understand their position, insist that the amendment of 1913 (Laws 1913, p. 272), by providing that "if the court finds that the owners of a majority in acreage of the proposed district are petitioners, or have joined in prayer of said petition for said ditch or improvement by motion, then the court shall, or if less than a majority, the court in its discretion may find in favor of making the improvements," in a case which meets the conditions stated, has made it a mandatory and merely ministerial duty of the county court to order the incorporation of the district. Since, therefore, the petition presented to the county court in the case at bar contained the names of the owners of a majority of the acreage to be embraced in the proposed district, there was left in the county court no discretion whatever, and it became its mandatory duty to make the order. Stating their position thus relators earnestly insist that mandamus will lie, and that our alternative writ herein should be made peremptory.

Respondents contend, among other things urged, that the amendment of 1913 did not so change the statute as to take away from the county court all discretion and make of the duties incumbent merely ministerial acts; hence they urge mandamus will not lie. They also contend that if the statute does have the effect to shear the county court of all discretion to determine questions of public welfare, health, utility, convenience, and sanitation, then the statute is unconstitutional. This for the reasons: (a) That it permits private persons to determine these questions of public use for themselves, and through the resultant construction of ditches on and across, and by levying taxes against, the lands of nonconsenting citizens, takes the property of the latter without due process of law; (b) and that such a taking, lacking a judicial determination of public utility, would constitute the taking of the private property of a citizen for a private use.

As we gather the trend of relators' argument, they do not contend that mandamus will lie, if the statute has left in the county court any discretion,...