The State ex rel. Levee District v. Thompson
| Decision Date | 23 June 1926 |
| Docket Number | 27370 |
| Parties | The State ex rel. Levee District v. L. D. Thompson, State Auditor |
| Court | Missouri Supreme Court |
Peremptory writ awarded.
P B. Hood and Chas. A. Killian for relator.
(1) It is not necessary that the notices shall run in the name of the State of Missouri. Sec. 38, Art. VI, of the Constitution is directory and not mandatory. Creason v. Yardley, 198 S.W. 830, 272 Mo. 279. (2) The levee district No. 2 is a public corporation. Morrison v. Morey, 146 Mo. 543; State ex rel. Caldwell v. Little River Drain. Dist., 291 Mo. 72; State ex rel. Haugsen v. Allen, 298 Mo 448; Mound City Land & Stock Co. v. Miller, 170 Mo 240; Drain. Dist. v. Turney, 235 Mo. 80; Browning v. Hooper, 46 S.Ct. 141; Beach on Public Corporations (1 Ed.) pars. 262, 263, 739. (3) No notice is necessary to anybody in the incorporation or the extension of a public corporation. Egyptian Levee Co. v. Hardin, 27 Mo. 495; Browning v. Hooper, S.Ct. 141; R. S. 1919, sec. 8541; State ex rel. v. Weatherby, 45 Mo. 17; Kaiser v. Trustees, 16 Mo. 88; State ex rel. v. Lichte, 226 Mo. 273; R. S. 1919, sec. 7615; Hislop v. Joplin, 250 Mo. 595; State ex rel. v. Birch, 186 Mo. 205. The Legislature is not bound to consider the wishes of the corporators even as to municipal corporations. Beach on Public Corporations (1 Ed.) par. 51. Such districts can be formed and the tax for benefits spread by the Legislature. Egyptian Levee Co. v. Hardin, 27 Mo. 495; Browning v. Hooper, 46 S.Ct. 141; Act Incorporating Egyptian Levee Co., Laws 1855, p. 74. (4) The landowner has his day in court in this proceeding in all instances where the rights of property is involved. R. S. 1919, secs. 4697, 4671. (5) Sec. 2579, R. S. 1919, authorizes the county court to increase the number of its regular terms, but not to decrease them. Overton v. Johnson, 17 Mo. 442; Mo. Constitution, art. 6, sec. 22; Mo. Constitution, art. 2, sec. 10. The act is remedial in its nature and should be liberally construed. Black on Interpretation of Laws, p. 310. (6) The order of the county court is sufficient to create the first Monday of each month a regular term. "A regular term of court is one held at a time and place fixed once for all." 15 C. J., p. 870. (7) The time of notice was sufficient. R. S. 1919, sec. 1790.
North T. Gentry , Attorney-General, for respondent.
This is a proceeding to compel by mandamus the respondent, State Auditor, to register bonds issued by the relator. The relator filed an amended petition in this court June 14, 1926, to which the respondent on the same day, waiving the issuance of an alternative writ, filed his demurrer as and for the alternative writ.
The petition alleges that Levee District No. 2 of Perry County, by judgment of the County Court of Perry County, was incorporated May 6, 1912, with the usual powers of a corporation for public purposes. It sets out the proceedings by which the county court of said county, at the regular term of that court, beginning April 6, 1925, included other lands in the levee district.
The petition then recites the proceedings whereby the said county court and the board of directors of Levee District No. 2, in August of that year, proceeded to authorize the issuance of the bonds under consideration here; the levy of the tax to pay the bonds, the presentation of the bonds to the State Auditor, and his refusal to register them, and prays for an alternative writ commanding the respondent to register the bonds or show cause why a peremptory writ should not issue. The demurrer contains the following:
1. That the petition does not state facts sufficient to constitute a cause of action.
2. That the notice issued under Section 4699, Revised Statutes 1919, for the inclusion of other lands in the levee district, was not sufficient in that it did not give the owners of the land a proper time before they were required to appear.
3. That such notice did not run in the name of the State.
4. That said notice did not describe the land sought to be annexed to the district.
5. That the judgment of the county court extending the lines of the district was not made at the regular term of the county court as the statute requires.
6. That Section 4697, Revised Statutes 1919, is in contravention of Section 30, Article II, of the Constitution of Missouri, and Section 1 of the Fourteenth Amendment to the Constitution of the United States, because owners of the land sought to be annexed to the district were deprived of their day in court, and therefore the property was taken without due process of law.
It will be noticed that this demurrer does not attack the regularity of the organization of the district and its proper and legal existence as a corporation. Neither does it attack the regularity of the proceeding in the district by which the bonds were authorized and the improvement for which they were issued regularly voted, unless the general challenge in the first point made in the demurrer may be said to attack such regularity. It only goes to the proceeding whereby additional lands were incorporated in the district.
It may be noted here that the State Auditor has neglected the consideration of some questions which naturally arise. For instance, why should the bonds, regularly authorized by a district which has been duly and regularly incorporated, be held invalid because some lands are improperly included in the district, and some persons may have a right to resist a tax assessed for the payment of the bonds?
Why, in this collateral proceeding, should the Auditor object to the bonds when those interested have not seen fit in a direct proceeding to test their rights in the premises?
As a matter is presented we will not consider those questions, but limit our consideration to the points advanced by the demurrer, and we may thus settle questions which may hereafter arise.
I. The general challenge to the petition in the demurrer cannot go to the validity of the organization in the district because according to the allegations of the petition it was regularly incorporated in 1912. It cannot be sustained on account of any irregularity in the proceeding by which the bonds were authorized and issued, because the petition sets up facts showing that the statute was strictly complied with in that respect. Mention is made of the ruling of the Federal Supreme Court in the case of Browning v. Hooper, 46 U.S. S.Ct. 141, which we have fully considered in the case of State ex rel. Little Prairie Road District v. Thompson, ante, page 56. It turns upon the organization of a district without according to those affected by its organization an opportunity to be heard. In this case we are not concerned with the organization, but only with the extension, of the district under the provisions of Section 4699, Revised Statutes 1919. That section provides for notice to be given the land-owners when it is desired to include other lands in a district already established, and a hearing before the county court to determine whether or not their land shall be benefited by its inclusion. The statute was strictly complied with. The directors of the district filed their petition with the clerk of the county court, and that court thereupon made an order requiring notice to be served; both the order and the notice included the names of landowners affected. Twenty-six of such landowners were personally served with notice by the sheriff. Five alleged to be non-residents were served by publication. Five persons whose names were not included in the petition, voluntarily entered their appearance, claiming their lands were included in the proposed extension, and filed their protest against the proceeding. There is no complaint that any person whose land was in the district was not served with process or did not appear. A hearing was duly had and the county court made a finding that all lands sought to be incorporated in said district were subject to overflow and could not adequately be protected without such inclusion. Therefore the extensions were ordered.
The proceeding was entirely regular in form and no objection is made to it except technical points, to be noticed.
II. The second point made by the demurrer is that the notice was not sufficient because it required the owners of all land proposed to be taken into the district to appear, and did not give them sufficient time after service. The notice required those property owners to appear the first day of the regular term of the court beginning April 6, 1925. The notice, as shown by the sheriff's return, was served on different parties in Perry County at various dates extending from March 9th to March 17th. A few of the parties were served March 23rd. The statute, Section 1216, Revised Statutes 1919, applies to this case. It provides that unless a different time is prescribed by law or the practise of the court, notices shall be given at least five days before the time appointed for the hearing of the motion, pleading or other proceeding, to persons residing within fifty miles of the place where the hearing is to be had, and one additional day for every additional twenty-five miles. Section 4699, under which the proceeding was had, provides a time of service for non-residents by three insertions in a newspaper, the last insertion to be not more than one week before the hearing. In this instance the publication was made March 12th, 19th and 26th. The fixing of the time for publication for non-residents and the omission of any time for personal service, shows an intention by the Legislature to have the general laws, Section 1216, Revised Statutes 1919, apply. No other statute is pointed out by respondents as applicable.
III. The notice is challenged because it did not run in the...
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