The State ex rel. Manion v. Dawson

• Decision Date: 30 October 1920
• Parties: THE STATE ex rel. E. W. MANION et al. v. JOHN M. DAWSON, Circuit Judge
• Court: Missouri Supreme Court

225 S.W. 97

284 Mo. 490

THE STATE ex rel. E. W. MANION et al. v. JOHN M. DAWSON, Circuit Judge

Supreme Court of Missouri

October 30, 1920

Writ quashed.

Kelso & Kelso, Perry S. Rader, S. J. & G. C. Jones and C. E. Gibbany for relators.

(1) Secs. 2 and 40 of Circuit Court Drainage Disttrict Act of 1913 are in pari materia and must be read together; and when read and considered together, they mean that all the fundamental conditions for organizing a drainage district prescribed by Section 2 must be present before the court can render judgment extending the boundary lines of such a district to include other large tracts of land. Grimes v Reynolds, 184 Mo. 688; Grimes v. Reynolds, 94 Mo.App. 584; Sales v. Barber Asphalt Pav. Co., 166 Mo. 677; Lewis-Sutherland on Statutory Construction, secs 368, 443; Roth v. Gabbert, 123 Mo. 32; Litson v Smith, 68 Mo.App. 393; State ex rel. v. Moore, 96 Mo.App. 431; State ex rel. v. Dearing, 173 Mo 492; State ex rel. v. Fort, 180 Mo. 112; King's Lake Drain & Levee Dist. v. Jamison, 176 Mo. 557; Ewing v. Vernon County, 216 Mo. 692; State ex rel. v. Wiggins Ferry Co., 208 Mo. 622 639; Keeney v. McVoy, 206 Mo. 67, 69, 74; Julian v. Kansas City Star Co., 269 Mo. 68; Bishop on Written Law, sec. 64; State ex rel. v. Chariton Drain Dist., 252 Mo. 360, 362; State ex rel. v. West, 272 Mo. 304. (2) The lands added to the Albany Drainage District by the judgment extending its boundary lines were not lands contiguous to said district, nor did the four extensions embracing said lands, together with the lands in the district as organized, constitute a contaguous body of swamp, wet or overflowed land. Weld v. People, 227 Ill. 556; Lincoln County Bank v. Hopkins, 47 Kan. 582; Century and Standard Dictionaries, defining "contiguous;" Webster's New International Dictionary (1918); No. Pac. Ry. Co. v. Douglas County, 145 Wis. 291; Askell v. Commerce Ins. Co., 69 N.Y. 192; Bolen Coal Co. v. Ryan, 48 Mo.App. 515; Holston Salt & Plaster Co. v. Campbell, 89 Va. 396 Olson v. Fire & Marine Ins. Co., 35 Minn. 432; Raxedale v. Seip, 32 La. Ann. 435; Langlais v. Cameron, 201 Ill. 301; Pevereley v. People, 3 Park. Crim. (N. Y.), 59, 69; Ingersoll on Public Corporations, p. 151; Traux v. Pool, 46 Iowa 256. (3) Sections 2 and 40 of the Act of 1913, considered together, mean that the boundary lines of the drainage district cannot be extended to include other large tracts of land except upon the petition of the owners of the majority of the acres to be added; therefore the circuit court had no jurisdiction to so extend the boundary lines of the Albany Drainage District as to add 11,039.22 other acres thereto, without the formal consent of the owners of any of them. Elsberry Drainage Dist. v. Harris, 267 Mo. 143, 148, 151; R. S. 1909, secs. 5500, 5570, 5760. (4) The judgment of the circuit court extending the boundary lines of the drainage district so as to include the lands of relators and other lands, without the consent of the owners of any of them, denied to relators the equal protection of the laws guaranteed, to them by the Fournteenth Amendment of the Constitution of the United States, in that it denied to the owners of a majority of the acres of the lands added the right by withholding their consent to prevent the extension, while Section 2 of the Act gives to the owners of a majority of the acres described in the articles of association the power to prevent the organization of a drainage district by witholding their consent, thus dividing a natural class into two classes, and administering the law in one way to one division of the class, and denying to the other subdivision, though alleged to be in the same situation, equal privileges and immunities. Said judgment is therefore void. State v. Thomas, 138 Mo. 95; State v. Walsh, 136 Mo. 405, 407; Cooley on Constitutional Lim. (6 Ed.) secs. 481-483; State v. Julow, 129 Mo. 163, 176; Van Riper v. Parsons, 40 N. J. L. 1; State ex rel. v. Railroad, 195 Mo. 245; Gulf Colo. & S. F. Ry. v. Ellis, 165 U.S. 150; Barbier v. Connolly, 113 U.S. 31; State v. Haun, 61 Kan. 154; State ex rel. v. West, 272 Mo. 304; In re Drainage Dist. Buschling v. Ackley, 270 Mo. 157; Carder v. Fabius Drain. Dist., 262 Mo. 554; St. Jos. & Iowa Ry. Co. v. Shambaugh, 106 Mo. 566; Hopkins v. Council Bluffs Ry., 79 Mo. 100; Orrick School Dist. v. Dorton, 125 Mo. 439; Hunt v. Salisbury, 55 Mo. 310; State ex rel. v. Arnold, 38 Ind. 41; Knapp v. Kansas City, 48 Mo.App. 492; State ex rel. v. Wilder, 200 Mo. 105; Nishnabotna Drain. Dist. v. Campbell, 154 Mo. 157; State ex rel. v. Swearengin, 273 Ill. 630, 113 N.E. 166; State v. Loomis, 115 Mo. 307. If it be claimed that the Legislature can authorize the governing body of a public corporation to extend its boundary lines without the consent of the owners of the lands to be included, the answer is that the Albany Drainage District was a mere tentative organization, and the doctrine, even if anywhere upheld, has no application here, because no mere tentative or conditional corporation can extend its boudary lines. Sec. 37, Laws 1913, p. 253; In re Drainage District, Buschling v. Ackley, 270 Mo. 165; Carder v. Fabius Drainage Dist., 262 Mo. 554, 556, 559; Ry. Co. v. Shambaugh, 106 Mo. 566; City of Hopkins v. Council Bluffs Ry. Co., 79 Mo. 100; Orrick School Dist. v. Dorton, 125 Mo. 442, 444; State ex rel. v. Arnold, 36 Ind. 41; People ex rel. v. Swearengin, 273 Ill. 630. (5) Precedent jurisdictional facts necessary to authorize a circuit court to extend the boundaries of a district were not present in this case, namely (a) the reclaiming of the lands added was not alleged or adjudged to be for a public purpose, and (b) the judgment authorizes petitioners to appropriate relators' land for rights of way without describing what lands are to be taken or naming their owners, and thereby denies to relators due process of law, in violation of Section 30 of Article 2 of the Constitution of Missouri. Laws 1913, p. 233, sec. 2; Morrison v. Morey, 146 Mo. 563; Cooley on Const. Lim. (6 Ed.) p. 475; Gaines v. Buford, 1 Dana (31 Ky.), 484; Gifford Drain. Dist. v. Shroer, 145 Ind. 578, 579; In re Theresa Drainage Dist., 90 Wis. 301; Kinne v. Bare, 68 Mich. 625; In re Drainage Dist., 270 Mo. 171; Elsberry Drain. Dist. v. Harris, 267 Mo. 153; Nishnabotna Drain. Dist. v. Campbell, 154 Mo. 157; Chi. R. I. & Pac. Ry. v. Young, 96 Mo. 39; State ex rel. v. West, 272 Mo. 304; Council Bluffs Ry. Co. v. Campbell, 62 Mo. 585; Ellis v. Pac. Ry. Co., 51 Mo. 200; Leslie v. St. Louis, 47 Mo. 474; St. Louis v. Gleason, 93 Mo. 33, 38; City of Tarkio v. Clark, 186 Mo. 286, 298; United States v. Reed, 56 Mo. 565. (6) The board of supervisors were without authority to file a petition to extend the boundaries of the Albany Drainage District before the surveys contemplated by Section 9 of the Act of 1913 had been made, and a plan for reclamation had been adopted by the board as provided by Section 10 and filed with the clerk of the circuit court as provided by Section 12. Until such plan had been adopted by the board and filed with the circuit clerk the court acquired no jurisdiction of a petition to extend the boundary lines of the district. Laws 1913, secs. 9, 10, 12 and 40, pp. 237, 238, 254; Elsberry Drain. Dist. v. Harris, 267 Mo. 152; People v. Swearengen, 273 Ill. 630; People v. Darst, 265 Ill. 359; Wayne Drain. Dist. v. Boggs, 262 Ill. 338; Tennessee Drain. Dist. v. Moye, 258 Ill. 296; Kinne v. Bare, 68 Mich. 625; Simpson v. Board of Supervisors, 180 Iowa 1337; George v. Middough, 62 Mo. 551; Bertholf v. O'Reilly, 74 N.Y. 519; Hennig v. Stead, 138 Mo. 434; Hunt v. Searcy, 167 Mo. 180; Scott v. McNeal, 154 U.S. 34. (7) The judgment by which the circuit court added 11,039.22 acres of land to a tentatively formed drainage district of 5,704.06 acres, upon the petition of the supervisors alone, without the consent of the owners of any of said lands so added, and against the solemn protest of the owners of 3,743.49 acres thus added, is so unreasonable as to be an abuse of the court's power, and should be quashed on the grounds of unreasonableness. MeClesky v. State ex rel., 23 S.W. 518; Heinemann v. Sweat, 130 Ark. 70; Coffman v. St. Francis Drainage Dist., 83 Ark. 54; French v. Barber Asphalt Pav. Co., 181 U.S. 324; Kelly v. Meeks, 87 Mo. 396; Corrigan v. Gage, 68 Mo. 544; Copeland v. St. Joseph, 126 Mo. 431; State ex inf. v. Kansas City, 233 Mo. 162; State ex rel. v. Mining Co., 262 Mo. 504; City of Plattsburg v. Riley, 42 Mo.App. 23; City of Cape Girardeau v. Riley, 72 Mo. 223; City of Tarkio v. Cook, 120 Mo. 9; Elsberry Drain. Dist. v. Harris, 167 Mo. 148; State ex rel. v. Birch, 186 Mo. 219; R. S. 1909, sec. 5760.

D. D. Reeves and J. W. Peery for respondent.

(1) The circuit court in fixing boundary lines of a drainage district, or in extending said boundaries, acts as a legislative agent. That part of its duties as fixed by the Act of 1913, is not judical, but legislative. Birmingham Drain. Dist. v. Railroad, 274 Mo. 153. (2) It is well settled that certiorari, like a writ of error, will lie only where the action sought to be reviewed is judicial in character. It will not lie if such action is the exercise of a ministeral or legislative function of government. State ex rel. v. County Court, 237 Mo. 469; State ex rel v. Reichmann, 239 Mo. 112; Lehigh Co. v. Inc. Town of Lehigh, 136 N.W. 934, 156 Iowa 386. The division of a municipality into wards being a legislative matter, though delegated to the council of the city, the council's action can not be investigated by certiorari. Fitzgerald v. Curley, 220 Mass. 503; Gas Co. v. Greenville, 165 Mich. 135; Red River Co. v. Grand Forks, 27 N.D. 8; Tiger v. Creek Co. Court, 45 Okl. 701; Teeny v. City of Columbia, 48 Wash. 150. (3) In this State the writ of...