The State ex rel. Applegate v. Taylor

• Decision Date: 21 December 1909
• Citation: 123 S.W. 892,224 Mo. 393
• Parties: THE STATE ex rel. APPLEGATE et al. v. TAYLOR et al., Judges of the County Court, et al
• Court: Missouri Supreme Court

123 S.W. 892

224 Mo. 393

THE STATE ex rel. APPLEGATE et al.

v.

TAYLOR et al., Judges of the County Court, et al

Supreme Court of Missouri

December 21, 1909

[Copyrighted Material Omitted]

Writ quashed.

Crawley & Rucker and Tyson S. Dines for relators.

(1) The petition should show all jurisdictional facts. Railroad v. Lewright, 113 Mo. 660; St. Louis v. Gleason, 89 Mo. 67; Kansas City v. Mastin, 169 Mo. 80; Baubie v. Ossman, 142 Mo. 499. Here the petition contains no description of the ditch. Contains no description of the lands to be embraced in the proposed district. Gives no names of landowners other than the petitioners. Does not give the width of the strip of land to be condemned. Does not give a true description of the beginning, route or terminus of the ditch. Does not even give the course. Does not show that the petitioners possessed the statutory qualifications. Township v. Probate Judge, 53 Mich. 130. The law is and has ever been in condemnation proceedings that the petition must set forth the specific purpose for which the exercise of eminent domain is sought, and that it is necessary to take the property condemned for the specific purpose stated in the petition. 14 Cyc. 1031, note 43; Ib 1030, note 40; Patterson v. Behr, 161 Mo. 513; Mattias v. Drainage Comrs., 49 Mich. 465; Frost v. Leatherman, 55 Mich. 33; Whiteford Twp. v. Monroe County, 53 Mich. 133. The rule is universal that the petition must set forth every jurisdictional fact. The petition here fails of this in every particular. St Louis v. Gleason, 89 Mo. 67; City of Hopkins v Railroad, 79 Mo. 98; Jefferson County v. Cowan, 54 Mo. 234; School District v. Oeillien, 209 Mo 464; Railroad v. Storey, 96 Mo. 620; Cory v. Railroad, 100 Mo. 288; Railroad v. Townsite Co., 103 Mo. 569; Railroad v. Swan, 120 Mo. 30; Whitely v. Platt County, 73 Mo. 30; Zimmerman v. Snowden, 88 Mo. 218; Railroad v. Railroad, 94 Mo. 542. Wherever property is sought to be taken for public use, the petition should either give the names of landowners or a description of the lands. Seifener v. St. Louis, 141 Mo. 586; Miller v. Graham, 17 Ohio St. 1; Railroad v. Smith, 78 Ill. 96; Richard v. Cypremont Drainage Dist. 32 So. (La.), 27. (2) The statute requires a bond with two freehold sureties. The bond here does not purport to be signed by sureties, and there is not one word in the record to show that Shire and Karcher signed as sureties, or were freeholders. Casey v. Burt County, 59 Neb. 624. (3) The proof of publication of the first notice is bad for the reason that the statute expressly requires that the publication shall be in a newspaper of "general circulation," and there is nothing in this record to show that the Salisbury Press-Spectator is or was a newspaper of "general circulation." Kern v. State, 35 Neb. 676. (4) The preliminary notice was bad. The object of a notice affecting property rights is to advise persons concerned of the character of the proceedings. In this case the notice gives no names save the petitioners, describes no lands, outlines no district; but simply invites persons concerned to come to the court house and look at a map. This was not the notice the statute required. Williams v. Kirby, 169 Mo. 622. (5) None of the orders of the county court contain the necessary jurisdictional recitals demanded by the foregoing authorities. They do not even set forth that the stream is in fact "not navigable" -- a finding rendered necessary as the very foundation of the whole proceeding. Laws 1903, p. 234; Fox v. Holcomb, 34 Mich. 298. (6) The Act of 1899 has no application to natural streams. The terms "ditch, drain and watercourse" as used in that act, section 8278, did not include living streams. Green County Comrs. v. Harbine, 74 Ohio St. 318. By the Act of 1903 (p. 234) the operation of Art. 4, Chap. 122, R. S. 1899, was expressly limited to "natural streams -- not navigable." Whereas the Grand Chariton has been recognized by the State as a public highway from the Iowa line to its mouth since 1845. Laws 1845, p. 299. Such enactments were common between 1839 and 1849. See Acts 1839, pp. 81-87-88; Acts 1841, pp. 114-115; Acts 1843, pp. 69-70; Acts 1845, p. 299; Acts 1848, pp. 120-121; Acts 1855, pp. 474, 538 and 625. There can be no question of the right of the State to enact legislation of this character. It is the accepted doctrine that State Legislatures may control all rivers within their boundaries until Congress actually exercises its paramount authority in the interests of interstate commerce. Escanaba Co. v. Chicago, 107 U.S. 678; Cooley, Const. Lim. (6 Ed.), p. 728; Wilson v. Black Bird Co., 2 Pet. 245. Having solemnly recognized and asserted the navigability of this great tributary of the Missouri river the State was pledged to maintain the stream in its natural condition. Wood v. Fowler, 26 Kans. 682; Selman v. Wolfe, 27 Tex. 68; Coovert v. O'Connor, 8 Watts (Pa.), 470; Union Canal Co. v. Landis, 9 Watts 228; Deddrick v. Wood, 15 Pa. St. 9; Barclay R. & C. Co. v. Ingham, 36 Pa. 194; Dubois v. Glaub, 52 Pa. St. 238; Witt v. Jefcoat, 10 Rich. L. (S. C.) 389; Tyrrell v. Lockhart, 3 Blackf. 136; Baker v. Lewis, 33 Pa. St. 305; Harold v. Jones, 86 Ala. 274; Minturn v. Lisle, 4 Cal. 180; People v. St. Louis, 10 Ill. 351; Atty. Gen. v. Del. Etc., R. Co., 27 N.J.Eq. 7; People v. Gutchess, 48 Barb. (N. Y.) 656; State v. Dibble, 4 Jones L. (49 N. C.) 107. The status of the stream being thus established by the Legislature as a public highway, it has ever since been a "navigable stream" within the meaning of subsequent enactments. Tyrrell v. Lockhart, 3 Blackf. 136; Walker v. Board Public Works, 16 Ohio 544; Baker v. Lewis, 33 Pa. St. 305. And having declared the Chariton a public highway of the State, it was beyond the power of the Legislature to divert the stream from its natural bed, except by express repeal of the Act of 1845. Cooley, Const. Lim. (6 Ed.), 643; 1 Farnham on Waters, p. 598; Angell on Watercourses (7 Ed.), sec. 93; Rossmiller v. State, 114 Wis. 160; Brown v. Cunningham, 82 Ia. 512. (7) The Act of 1899 is void in its entirety. The title of the act does not disclose its import. There is nothing in the title to indicate its scope. Taking it section by section it is full of unconstitutional provisions. In the first place the emergency clause, section 38, shows that the act was not designed to apply to streams of the size and importance of the Chariton. Indeed the entire act discloses that it was only intended to affect the swamp lands of Southeast Missouri. In the second place the act devolves upon the viewers' judicial powers wholly inconsistent with their duty to view and condemn the right-of-way. State ex rel. v. Washburn, 167 Mo. 680; State ex rel. v. Ryan, 177 Mo. 205; Elliott on Roads and Streets, section 272. In the third place the statute makes the report of the viewers conclusive upon the county court. This stultifies the judicial character of the proceedings and makes the county court a mere machine to register the will of the viewers. Again the statute provides that the initial costs, damages, expenses and attorneys' fees shall be paid out of the general revenues of the county. This is clearly in violation of the constitutional provisions prohibiting the loaning of the credit of the State under Sec. 45, and the granting of public money under Sec. 46 and 47, Art. IV, of the State Constitution. Martin v. Drainage Comrs., 60 N.W. (N. D.) 392. Again Sec. 8292, R. S. 1899, and the same section in the Laws of 1903, p. 235, makes the giving of a cost bond a condition precedent to the filing of exceptions. Thus denying or putting a price upon justice in violation of Sec. 10, Art. 2, Const., Mo. Yet another absurdity in the law of 1899, is the provision that the landowner living adjacent to the ditch shall keep it free of willows and obstructions, under penalty of having the county court appoint "some person," qualifications unspecified, to assess the cost of cleaning the ditch against the abutting landowner. Sec. 8306. Yet again the law of 1899, makes no provision for the autonomy of the district. It says that the territory embraced within the limits recommended by the viewers, shall constitute a drainage district, and by the act of 1907, the district is declared to be a body corporate, yet no one is empowered to act for the district, nor is anybody authorized to sue in the district's behalf, or to be served with process. Indeed the return to the writ in this very case shows there is no one upon whom the writ could be served. Taking all these points together, and treating the act of 1899 as an entire scheme we insist that its provisions are so uncertain, absurd, vague and preposterous as to be void. State ex rel. v. Ashbrook, 154 Mo. 375; State ex rel. v. Stephens, 146 Mo. 622; State ex rel. v. Nast, 209 Mo. 732; State v. Williams, 77 Mo. 313; State v. Bockstruck, 136 Mo. 335; State ex rel. v. Warner, 197 Mo. 650; State v. Kring, 74 Mo. 612; Copeland v. St. Joseph, 126 Mo. 417. The constitutional requirement that a legislative bill shall contain but one subject and that subject be clearly expressed in its title, was obviously ignored in the Act of 1899 (Laws 1899, p. 278). There is nothing in the title of that enactment indicative of a legislative design to repeal statutes governing the appropriation and disbursement of general county revenues. Yet secs. 8299 and 8306, Revised Statutes 1899, authorizing the payment of damages and initial expenses of drainage ditches out of county funds raised by general taxation can only be upheld upon the theory that they by implication repeal sections 9283 to 9287, which require each fund to be sacredly devoted to specific uses, and forbid, under severe penalties, their diversion to other purposes. (8) The title to the amendment of 190...