State Ex Inf. McAllister Ex Rel. Cole v. Norborne Land Drainage District Co.

ELDER, J.

This is an original proceeding by quo warranto brought upon information of the Attorney General at the relation of Charles D. Cole and others, owners of 3116.55 acres of land in Ray County, against the respondent, Norborne Land Drainage District Company, seeking to annul a judgment of the Circuit Court of Carroll County extending the boundary lines of said drainage district, and to oust respondent from exercising over the lands of relators the franchises, powers and privileges of a legally organized drainage district and public corporation.

The Norborne Drainage District was orginally incorporated by decree of the Circuit Court of Carroll County in May, 1899, and comprised about 14,400 acres of wet, swamp and overflow lands in Carroll and Ray counties. At the January term, 1917, of the said circuit court the district was reorganized under the provisions of an act of the General Assemby pertaining to the “Organization of Drainage Districts by Circuit Courts” (Laws 1913, pp. 232 to 267), the said district as reorganized having the same boundaries as the original district, but embracing none of the lands of relators. Thereafter an engineer was employed to make surveys of the lands in the district and adjacent thereto and he prepared a “Plan for Reclamation” for draining, levee-ing and reclaiming the same, which plan was adopted by the board of supervisors of the drainage company on December 5, 1917, and filed with the Clerk of the Circuit Court of Carroll County on December 31, 1917. On December 5, 1917, the board of supervisors of the respondent company filed in the office of the Circuit Clerk of Carroll County a petition asking that the boundary lines of the district be extended so as to include the lands of relators and other lands. This petition was not joined in by relators. It is in part as follows:

“These petitioners show to the court that the boundary lines of said Norborne Land Drainage District Company, as incorporated and now existing, and as said boundary lines are now established and defined, comprise a large area of low, wet, swamp or overflowed land or lands that are subject to overflow, and that adjacent to and bordering upon said district is a large area of low, swamp or overflowed lands and lands that are subject to overflow, and. which will be benefited by being included within the boundaries of said district and becoming a part thereof; that the ditches, drains and improvements contemplated by said district will render said lands more valuable for farming, making them more productive and improve the sanitary condi tions of said land, and will largely increase the market value of said lands; all of which said lands are included within the boundary lines as described and defined in the prayer of this petition.

‘ 'Wherefore, these petitioners ask and pray the court that the boundary lines of said district he extended so as to include lands situated in Carroll and Ray counties, Missouri, not described by and included in tire articles of association and decree of the court incorporating said district; that is to say, petitioners ask and pray the. court that the boundary lines of said district be extended so that the following will be a part of or the extended boundary line of said district, to-wit. ’ ’

Notice of the filing of said petition, as required by statute, was duly given, and objections were filed by persons owning land both within and without the proposed boundary lines of the district, including a number of the relators herein. A hearing was had on' the said objections, and the circuit court sustained those filed by some of the owners of lands, but overruled those filed by relators. On August 12, 1918,. the court rendered a judgment and decree by which it added 23,952.42 acres to the district. Said decree recites in part the following:

‘ ‘ The court finds that all of the land contained within the above boundary line is situated in Carroll and Ray. counties, Missouri, and is a contiguous body of swamp, wet or overflowed land or land subject to overflow, and that all of the lands contained within the above described boundary line are contiguous and will be benefited by the construction of the improvements provided for in said plan for reclamation, and that all of the lands and property contained within said boundary line not included within the original boundaries of said Norborne Land Drainage District Company are of such a character and are so situated that unless they were included within the boundaries of said Norborne Land Drainage District Company of Carroll County, Missouri, they would share in the benefits of the work provided for by said plan of reclamation without contributing to the cost of the same, and that it would be inequitable to allow said lands and property to derive tire benefits from the construction of the improvements provided for in said plan for reclamation without contributing to the cost of the same. It is therefore adjudged and. decreed that the above described line be or constitute the extended boundary line of the Norborne Land Drainage District Company, of Carroll County, Missouri, and that all of the lands and property within the above described boundary line be and constitute the Norborne Land Drainage District Company, of Carroll County, Missouri.”

By said decree and pursuant to petition therefor, the court appointed three commissioners to assess benefits and damages accruing to the lands of relators and the other lands in the district as extended. The-commissioners having filed their report, and notice thereof having-been given as provided by law, several of the relators, among others, filed exceptions thereto. Upon a hearing of said exceptions the report of the commissioners was modified and amended as to some owners, but confirmed as to others. By its decree dated December 23,1919, the court modified and approved the report of the commissioners. In the course of said decree it is recited:

“The court further finds that all of the lands, included within the boundary line of said Norborne Land Drainage District as heretofore extended by this court, constitute and- are a contiguous body of swamp, wet and overflowed lands, and lands subject to overflow, and that the owners of a majority of the acreage of the land within said extended boundary line were at the time of said extensions in favor of the extension of said boundary line as the same has been extended by this court, and that said owners of a majority of the acreage of the land within said extended boundary lines were and are in favor of the execution and carrying out of the plan for reclamation herein; and the court further finds that the owners of a majority of the acreage of the real estate and other property within the boundary line of said district as the same have been extended by this court, and the owners of the real estate and other property whose names are subscribed to the articles of as sociation of said district are and were at all times willing to and do oblige themselves to pay the tay or taxes which may be assessed against their respective land and other property to pay the expense of organizing and of making and maintaining the improvements that may be necessary to effect the reclamation of said lands and other property within said drainage district, and to drain and to protect said land within the boundary line of said district as the same has been extended by this court from the effect of water.”

By stipulation of counsel for the parties hereto, filed in this court, it is agreed that the board of super visors of the respondent company “are preparing to exercise the privileges and rights conferred upon said drainage district by the decrees of the Circuit Court of Carroll County of August 12, 1918, and December 23, 1919, and have submitted the court record leading up to said decrees and the record proceedings of the board of supervisors preparatory to selling the bonds in said district for the purpose of obtaining money wherewith to construct drainage works called for by said plan for reclamation.”

The information filed herein, comprising forty-six pages of the record, after describing the lands of relators and reciting in detail most of the facts above set forth, alleges that respondent “without any legal right or authority whatever, has usurped and exercised franchises and liberties and still is usurping and exercising powers, franchises, privileges and liberties not possessed by it as a public corporation of the State of Missouri, and has undertaken to exercise and still does usurp and exercise, and ever since the 23rd day of December, 1919, has usurped and exercised, franchises and corporate authority and powers not conferred on it by law as a drainage district and quasi-municipal corporation, over the following lands, situate in Township 52 and Range 26, in Ray County, Missouri;” that the lands of relators “are not swamp, wet or 'overflow lands, or lands subject to overflow, and do not, together with the lands in the district as reorganized in 1917, constitute a contiguous body of swamp, wet or overflowed lands, or lands subject to overflow, but is high and dry land, and no system of drainage that may be constructed for draining, leveeing mnd reclaiming the lands embraced in the district as reorganized in 1917 will benefit or drain or reclaim said lands or protect them from the effects of water; that the. plan for reclamation adópted by respondent drainage district contemplates, as a part thereof, a levee which surrounds or partially surrounds the lands of relators hereinabove described, and a ditch which runs into and on the said lands of relators; that neither said levee nor said ditch was or is necessary to reclaim, in whole or in part, any of the lands included in said drainage district as reorganized in 1917; but said plan for reclamation was prepared and was adopted, and especially were said levee around and the ditch through said extended territory included therein, with the view and for the purpose of affording an excuse and justification for adding relators’ said lands to said drainage district in order that they might be made to pay the cost of draining and reclaiming the lands within the district as reincorporated, and not because the extension of its boundaries so as to embrace said lands was necessary for the proper reclamation and protection- from water of the lands already in the district; that none of the improvements provided for and included in the- plan for reclamation adopted by respondent was or is necessary for the proper reclamation and protection from the effects of water of the lands embraced in the respondent drainage district as reorganized in 1917; that other and different feasible plans for properly and efficiently reclaiming and protecting from the effects of water the lands so embraced in said district could have been adopted and executed, without extending its boundaries so as to include relators’ said lands; and that relators have never consented that the boundaries of said district might be extended so as to embrace and add to said district their lands hereinabove described. Informant therefore charges that there was no just reason, in law or in fact,-for extending the boundaries of said drainage district so as to add thereto the lands of relators above described.” Tbe information further alleges that tbe judgment of tbe circuit court of August 12, 1918, was void for tbe reason that tbe court bad been given “no opportunity of determining that tbe costs of constructing necessary drainage works for draining, leveeing and reclaiming tbe lands and other property contained in tbe district organized would be less than tbe benefits that would be assessed against tbe lands and other property in said district;” that Section 40 of tbe Act of 1913, under which tbe court proceeded, does not “confer upon tbe circuit court power or authority to extend tbe boundary lines of a drainage district so as to add other large tracts of laud thereto, upon tbe petition of its board of supervisors alone, but is a mere correction statute, designed and intended to afford means and methods for correcting errors, omissions and other mistakes in tbe plan of reclamation adopted by tbe board, and'to so alter and extend tbe boundaries as fixed by tbe decree incorporating the district as to include therein lands constituting a part of tbe contiguous body of swamp, wet or overflowed lands that should have been described and included in tbe articles of association and decree of tbe court incorporating tbe district, but which by omission or other mistake were not described by or included therein, but were erroneously and inadvertently omitted therefrom; that tbe Circuit Court of Carroll County bad no jurisdiction or authority, by reason of said Section 40 or any other statute, to so extend tbe boundary lines of respondent drainage district as to include tbe lands of relators;” that said Section 40 is void and in violation of Subdivisions 26 of Section 53 of Article IV of tbe Constitution of Missouri, of Sections 4 and 30 of Article II of tbe Constitution of Missouri and of Section 1 of Article XIV of the Amendments to tbe Constitution of tbe United States; and that tbe extension of tbe district “is not conducive, to tbe public health, convenience or welfare, or of public utility or benefit.”

Tlie return and answer of respondent, comprising, forty-five pages, pleads in detail .the facts relating to its incorporation and reorganization and the extension of the boundaries of the district, denies the charging allegations of the information, alleges that relators have been guilty of laches and are estopped from maintaining this action, and avers that in all things it has lawfully exercised its privileges and franchises.

The reply of relators puts in issue ¿11 of the controverted facts raised by the information and return.

With the pleadings and exhibits incident thereto there have been filed in this court the plan for reclamation and voluminous topographical and profile maps of the district.

Upon this record, necessarily epitomized but fairly outlining the issues urged, the cause has been briefed and submitted.

I. At the threshhold of a consideration of the points urged by relators we are met by the contention of respondent that quo ivarranto will not lie in the present proceeding. This insistence is vital. If sustained, it disposes of the case..

Quo Warranto. Quo warranto is one of the most ancient writs known to the common law. Formerly a criminal method of prosecution, it has long since lost its criminal character and is now a civil proceeding, expressly recognized by statute, and usually employed for tryin g the title to a corporate franchise or to a corporate or public office. It is not primarily an action in the interest of'any individual, but is intended to protect the public generally against the unlawful usurpation of franchises or offices. And it is not in any sense, a writ of correction or review. [State ex inf. Crow v. Fleming, 158 Mo. l. c. 563.]

In the case at bar relators pray that the “judgment of the Circuit Court of Carroll County of August 12,1918, and the judgment of said court of'December 23, 1919, confirming and making final said former judgment, be annulled and for naught held, in so far as they affect the lands of relators hereinabove described.” Clearly, the granting of such relief is beyond the purview of our authority, when measured by the functions of quo warranto. Respondent, being a corporation, we are limited to determining by what right it wrongfully or illegally exercises a certain franchise, or to ousting it from the right to be a corporation, for an abuse or non-user of franchises granted. [State ex inf. Crow v. Atchison, Topeka & Santa Fe Ry. Co., 176 Mo. l. c. 711.] And it is not for us to review the action of the circuit court in extending the boundary lines of the district in question. That that court acquired jurisdiction and that relators had an opportunity to be heard can not be denied, for the record shows conclusively that all of the requirements contemplated by Section 40 of the Act of 1913 (Laws of Missouri 1913, page 254), governing the matter of. extension, were fully complied with. Nor will mere erroneous findings of fact, or errors of judgment,* if any, afford sufficient ground for us to overthrow the judgment of the trial court. In the absence of fraud, which is here neither charged nor proven, the decree must be treated as conclusive. Thus, in State ex inf. Crow v. Fleming, 158 Mo. 558, a proceeding by quo war-ranto to test the validity of the incorporation of a city by the county court, this court held, l. c. 563; “The action of the county court in that matter was judicial, and its error, if error it made in judgment, cannot be brought to this court for review by writ of quo warranto. Quo toarranto is, in no sense, a writ of correction or review. To assail an order of the county court in the matter of incorporating a city or town, or to disturb the result of its judgment, through the office of the writ of quo warranto, all the essential infirmities thereof, and iniquities therein, resulting from the manner of its procurement, or the fraud of the court, must be alleged and proven with the same strictness that would be required in a bill in equity having for its object the an-nullment of the final judgment of any court of record of the State, brought about by fraud or collusion. An error of fact, made by the county court in a matter of calculation, computation, or of numbers, or of law, upon the question, such as, who are and who are not ‘taxable inhabitants’ of a designated community, «are no more fatal to the integrity, fidelity or conclusiveness of the judgment by that body, ordering the incorporation of the city or town, than would like errors made by any other court of record of the State.”

And in State ex rel. Rose v. Job, 205 Mo. 1, in which quo warranto was invoked to test the legality of the organization and change of boundary lines of certain school districts, it was held that the writ would not authorize a review of errors of judgment made by a board of arbitrators, Fox, P. J., speaking for the court, saying, l. c. 32: “If the record discloses that the board of arbitrators acquired jurisdiction to determine the questions of difference submitted to them and they have rendered a judgment upon such questions, in the absence of a showing that the judgment itself was procured by fraud, then the decision of the board of arbitrators upon the questions of difference submitted to them becomes conclusive.” Accordingly, we are not warranted in disturbing the judgment of the trial court.

Limited Right of Review. II. The charge by relators that respondent “without any warrant of law whatever, has usurped and is still usurping and exercising the powers, franchises, privileges and prerogatives of a legally organized drainage district and quasi-municipal corporation over the lands of relators,” coupled with their prayer of ouster, brings us, however, to the determination of a more serious question. "While what we have said supra is applicable to this inquiry, we shall, however, proceed to discuss additional reasons for the unavailability of the writ here urged.

The proceedings to extend the boundary lines of the respondent district were brought pursuant to. the pro visions of the act relating to the “Organization of Drainage Districts by Circuit Courts” (Laws 1913, page 232). That act has been adjudged to be special, independent of the civil code, and not governed thereby. As said by Walker, J., in Mississippi & Fox River Drainage District v. Ackley, 270 Mo. l. c. 173, “The drainage act being pprely a statutory proceeding, both as to the tribunal and the character of the proceedings, was unknown to the common law and the act is special and constitutional and the provisions of the code of civil procedure are not applicable thereto. In its present amended form it is a code unto itself. It is in all respects as to its provisions like the election law, forcible-entry- and-detainer law, road law and eminent domain statutes, and should be strictly followed and so construed, independent of the civil code. . . . Not being placed in the statute under the civil code of procedure, it is independent of it and is not governed by it. ” We are therefore obliged to be guided by the provisions of the act itself for a determination of the extent and method of a review of proceedings had thereunder.

An examination of the act reveals that the only method of review contemplated thereby is found in Section 16, wherein it is provided that an appeal may be taken from the judgment of the court rendered upon exceptions filed to the report of the commissioners upon the question of benefits and damages assessed; and then the appeal is limited to a determination of: First, whether just compensation has been- allowed for property appropriated; and, second, whether proper damages have been allowed for property prejudicially affected by the improvements. By Section 36 it is further provided that no appeal ‘ ‘ shall be permitted to act as super-sedeas or to delay any action or the prosecution of any work begun under the provisions of this law.” As held by this court in Mississippi & Fox River Drainage District v. Ackley, supra. l. c. 169, by amendments to the original drainage act, now incorporated in the Act of 1913, the Legislature “intended to and did take away the right of appeal from the decree incorporating the district, as well as from all other questions not specifically provided for in the act.” That the Legislature had the right to limit the right of review has been passed upon in Birmingham Drainage District v. Chicago, Burlington & Quincy R. R. Co., 274 Mo. 140, wherein it was said, l. c. 156. “We fail to see any constitutional or any other reason why the intention of the Legislature, evident upon the face of this act, to confine our right of review in these cases to the assessment of damages upon appeal taken within the time provided by statute, should not be respected.” In the same case, which was a proceeding by writ of error to the Clay County Circuit Court to review an assessment of benefits, this court, in dismissing the writ, held, l. c. 157, that it was not for us to extend the right of review as limited by the Legislature, “either with respect to its extent or the mode prescribed by the Legislature for its exercise.” To the same general effect was our holding en banc in State ex inf. Crow v. Atchison, Topeka & Santa Fe Ry. Co., 176 Mo. 687, a proceeding by quo war-ranto to oust the railway company from the exercise of certain rights and franchises for illegally exacting a re-consignment charge on shipments of grain. There the principle was enunciated that the Legislature having made provision for the regulation of transportation charges by railroads and prohibiting discriminations, quo warranto 'would not lie, Btjegess, J., speaking for the court, saying, l. c. 716: “These statutes have been enacted in pursuance of the Constitution, the remedies therein pointed out for redress for damages sustained is exclusive, and it is therefore not within the jurisdiction of this court to entertain quo warranto against defendant on account of any such matter.” In Elsberry Drainage District v. Meyer, 277 Mo. 439, the rule was laid down that no appeal lies from a judgment extending the boundary lines of a drainage district. In State ex rel. Manion v. Dawson, 225 S. W. 97, where certiorari was invoked to quash the record in a proceed ing for tlie extension of the boundary lines of the Albany Drainage District, this court en banc declined to review the action of the circuit court, holding that the matter of fixing boundaries, whether by an original decree of incorporation or by extension proceedings, is a legislative act.

Accordingly, „ in view of our decision in the Birmingham Drainage District case, supra, declining to extend the right of review as limited by the Legislature and holding that a writ of error would not lie to secure a review; in view of our pronouncements in State ex rel. Manion v. Dawson, supra, and Elsberry Drainage District v. Meyer, supra, that neither certiorari nor an appeal afforded' a remedy by which to review a decree extending the boundary lines of a drainage district; in view of the fact that our power to issue writs of error, certiorari and quo ivarranto are all derived from the same section of the Constitution, to-wit, Section 3 of Article VI; therefore, by analogy and a parity of reasoning, it is but consistent that we deny the right- of review in this case. We therefore hold that under the doctrine prevailing in this State, quo ivarranto does not lie in the present instance. This conclusion is in accord with precedent in the State of Illinois upon facts closely analogous to those at bar. [See People v. Cooper, 139 Ill. 461, and People v. Drainage District, 193 Ill. 428.]

Having thus concluded, it becomes unnecessary to pass upon the further questions ably briefed by counsel for both relators and respondent.

Our order is that the writ of quo warranto heretofore issued be quashed.

All concur; James T. Blair, C. J., in paragraph I and the result.

Case Details

Case Name: State Ex Inf. McAllister Ex Rel. Cole v. Norborne Land Drainage District Co.

Court Name: Supreme Court of Missouri

Date Published: Oct 10, 1921

Citation: 234 S.W. 344

Court Abbreviation: Mo.